In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-2275

DEBRA KRCHNAVY,

Plaintiff-Appellant,

v.

LIMAGRAIN GENETICS CORPORATION

a/k/a LG SEEDS INCORPORATED,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 00-C-445-C—Barbara B. Crabb, Chief Judge.

____________

ARGUED NOVEMBER 30, 2001—DECIDED JUNE 24, 2002

____________

Before FLAUM, Chief Judge, CUDAHY, and MANION, Circuit

Judges.

CUDAHY, Circuit Judge. In August 1999, Limagrain Genetics Corp. (LG Seeds) terminated Debra Krchnavy, a 44-

year old woman, as part of a reduction-in-force (RIF). Shortly thereafter, some of her former duties were taken over by

a different LG Seeds employee, who happened to be a 34-

year old male. Krchnavy sued her former employer alleging

discriminatory discharge in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.,

and Title VII of the Civil Rights Act, 42 U.S.C. § 2000

et seq. (sex discrimination). The District Court granted

summary judgement for LG Seeds on all claims. Because
2 No. 01-2275

Krchnavy has not carried her burden of showing that LG

Seeds’ legitimate, nondiscriminatory reason for her termination was pretextual, we affirm.

I.

LG Seeds, a subsidiary of Limagrain Genetics Corporation, processes farm seed for sale to farmers and dealers.

Prior to 1999, the operations of LG Seeds included four

regional service centers, which were each comprised of

a sales office and a product warehouse. These centers were

located in Tecamah, Nebraska; Mt. Pleasant, Iowa; Windfall, Indiana; and Prescott, Wisconsin. The Prescott facility,

where plaintiff Debra Krchnavy worked, had four full-time

employees: Krchnavy; Rich Cobian, a warehouse worker

and sales assistant; Craig Anderson, the office supervisor;

and John Squire, a sales agronomist. Krchnavy was the

only female in the office, and her status as the oldest employee was common knowledge.

Krchnavy’s employment with LG Seeds began in March

1995, when she was hired as a part-time employee. She was

transferred to full-time status in June of 1995 and given the

job title “Sales/Administrative Assistant-Office Manager.”

In this position, Krchnavy’s job responsibilities included

customer service and administrative work. Her customer

service work included responding to customer and employee

inquiries; preparing product comparisons; furnishing sales

reports; planning promotional trips; and assisting Anderson

with sales and marketing activities. The administrative

work included the preparation of billing and accounting

statements, which encompassed the preparation of accounts

receivable and payable statements; making bank deposits;

handling mail; tracking inventory; and the setting up and

maintenance of an office computer system and software.

In 1995, LG Seeds hired Rich Cobian as a “Sales and Administrative Assistant-Warehouse and Shipment Coordina-
No. 01-2275 3

tor.” In this position, Cobian’s responsibilities varied depending on the season. During the shipping season from

January to July, Cobian spent the majority of his time

performing warehouse tasks, which included the loading

and unloading of inventory; the organization and scheduling of deliveries; the maintenance of inventory levels on LG

Seeds’ computer system; and the taking of orders directly from customers. During the nonshipping season from

July to December, Cobian delivered advertisements; prepared literature; attended promotional events; assisted

dealers and customers with seed-related issues; and assisted Squire in the preparation of product reports. In addition, Krchnavy trained Cobian to do her work in case she

was absent.

In 1999, LG Seeds merged corporately and operationally

with Akin-Callahan, Inc. Shortly thereafter, LG Seeds initiated a reorganization of its personnel, which it dubbed

the VEGA project. This reorganization was carried out at

the corporate level, and according to the record, none of

Krchnavy’s coworkers or supervisors participated in reorganization decisions. The members of the VEGA project

team, who directed the reorganization, were company executives at locations other than Prescott. The goal of the reorganization was to make operations more efficient and

profitable. As part of the VEGA project, LG Seeds decided

to consolidate its operations by closing four service centers

and centralizing its accounting and customer service functions. Bruno Carette, who was part of the VEGA project

team, gave Barbara Wittig, Director of Human Resources

for LG Seeds, the task of determining which positions

were properly included within customer service, a category

which encompassed data entry, accounting and bookkeeping.

From late June though mid-July 1999, Wittig identified

several employees who fitted within the customer service

category. Ultimately, the VEGA project team concluded that
4 No. 01-2275

the customer service duties of Krchnavy, along with several

other LG Seeds employees, should be consolidated at one

facility in Elmwood, Illinois. There are no allegations nor

evidence that Krchnavy’s job performance was a factor

in LG Seeds’ termination decision. In total, the VEGA project resulted in the termination of forty-five employees. The

reorganization included the closure of the Prescott, Windfall, Tekemah and Mt. Pleasant service centers. At the

Tekemah and Mt. Pleasant facilities, LG Seeds terminated

all of its employees. At the Windfall facility, the company

transferred its employees to a facility in Westfield, Indiana.

The Prescott facility was the only location at which the

employment decisions were mixed; Krchnavy was terminated while Anderson, Cobian and Squire remained with

the company.

In August of 1999, Roger Bonsack, Anderson’s supervisor, informed Anderson of some the details of the VEGA

project, including the decision of LG Seeds to close the

Prescott facility and to relocate many of its functions to

Elmwood. Because the reorganization included the consolidation of accounting functions, Anderson was told that

Krchnavy’s employment was being terminated. During this

conversation, Anderson was also informed that Cobian

would not be part of the reduction in staff. Although

Cobian’s status was not specifically discussed, Anderson

knew that Cobian would have to be assigned some different

duties.

On August 16, 1999, Anderson informed Krchnavy that

LG Seeds was closing the Prescott facility and terminating

her. During this conversation, Krchnavy alleges that Anderson told her that Squire and he would probably work out

of their homes, and that Cobian’s position had also been

eliminated. At about the same time that Krchnavy was

informed of her termination, Anderson told Cobian that LG

Seeds intended to eliminate his current position, but that

he would remain employed by LG Seeds. Within the next
No. 01-2275 5

few months, LG Seeds made a decision to open another

facility in River Falls, Wisconsin. Although Anderson did

not participate in the decision of the VEGA project team to

terminate Krchnavy’s employment, he did participate in the

decision to transfer Squires, Cobian and himself to River

Falls.

Sometime after her termination but before the closure of

the Prescott facility, Krchnavy alleges that several events

took place that led her to doubt the truthfulness of Anderson’s explanation of her discharge. First, Cobian had given her contradictory accounts of his employment status.

Originally, he told her that LG Seeds was eliminating the

warehouse duties of his job, which lead Krchnavy to assume

that Cobian was going to be terminated. However, Cobian

later informed her that he had been offered a new job doing the same type of work as a sales assistant and that

he was taking over some of her former responsibilities.

Second, shortly after Krchnavy’s termination, her husband

went to her office to retrieve some of her belongings. While

at the office he had a conversation with Squire in which

Squire told him that Cobian was “taking over Debra’s job.”

Third, Krchnavy’s husband saw Cobian using her former

office.

In November 1999, Cobian, Anderson and Squire moved

into the new office in River Falls. Customer service duties,

such as accounting, invoicing and order entry, were no

longer being performed on site. These tasks were done at

the Elmwood facility by 37-year old Sally Coulter. However,

some customer service duties at the new office were shifted

to Cobian, such as answering questions and filling supplemental orders. In December 1999, Rich Cobian’s title was

changed to “Administrative Assistant/Marketing Support,”

in keeping with the fact that he no longer had substantial

warehouse duties. Because the River Falls facility had a

small seed storage facility that was used to supplement

customer orders, Cobian did retain some minimal ware-
6 No. 01-2275

house duties. During the shipping season, Cobian’s new job

required him to coordinate inventory, operate the seed

storage facility and address other customer needs. During

the non-shipping season, Cobian’s new position required

him to post signs in fields, attend promotional events, answer customer inquiries, perform office upkeep and work on

product reports.

Although Cobian’s duties included some of the duties that

Krchnavy previously performed, Cobian did not perform

Krchnavy’s former customer service functions of accounting,

invoicing, entering orders or communicating with customers about accounting issues. Again, these duties were

now being handled at the Elmwood facility. Yet, from

Krchnavy’s perspective, it appeared that she had been

replaced by another employee who was both ten years

younger than she and male. Krchnavy therefore filed

charges of gender and age discrimination with the EEOC.

On two separate occasions, Wittig responded to an EEOC

inquiry using information supplied in part by Anderson

and Ed Germain, a member of the VEGA project team. On

January 4, 2000, Wittig informed the EEOC that LG Seeds

did not discriminate against Krchnavy with respect to

her termination; LG Seeds eliminated Krchnavy’s position due to a company-wide reorganization plan, and Cobian

was not a customer service representative. Thus, LG Seeds

did not eliminate his position. On January 20, 2000, Wittig

informed the EEOC that, although Cobian performed a

slight portion of Krchnavy’s former duties, LG Seeds transferred Cobian, instead of Krchnavy, to the River Falls location because the “majority” of Cobian’s previous duties

had to be performed in Wisconsin, while Krchnavy’s duties

were transferrable to the Elmwood facility.

After obtaining a right-to-sue letter from the EEOC,

Krchnavy commenced the current action in federal court.

The district court subsequently granted summary judgment

to LG Seeds on all claims. Although the district court found
No. 01-2275 7

sufficient evidence to constitute a prima facie case of age

and gender discrimination, the court granted summary

judgment to LG Seeds because Krchnavy failed to put

forward evidence that LG Seeds’ proffered reason for her

termination (the VEGA project reorganization) was a pretext for gender and/or age discrimination. Krchnavy now

appeals.

II.

We review de novo the district court’s grant of summary

judgment. See Paluck v. Gooding Rubber Co., 221 F.3d

1003, 1009 (7th Cir. 2000). In doing so, we view the record

in the light most favorable to Krchnavy, drawing all reasonable inferences in her favor. See id.; Krocka v. City of

Chicago, 203 F.3d 507, 513 (7th Cir. 2000). Summary judgment is appropriate only when no genuine issue of triable

fact exists regarding a material issue. See Paluck, 221 F.3d

at 1009; Krocka, 203 F.3d at 513. We apply the summary

judgment standard with special scrutiny to employment

discrimination cases, which often turn on issues of intent

and credibility. See Bellaver v. Quanex Corp., 200 F.3d 485,

491 (7th Cir. 2000); Geier v. Medtronic, Inc., 99 F.3d 238,

240 (7th Cir. 1996). However, the mere existence of some alleged factual dispute between the parties will not defeat

a motion for summary judgment. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986).

Krchnavy alleges that LG Seeds terminated her employment because of her age and gender, in violation of the

ADEA and Title VII. See 29 U.S.C. § 623(a)(1) (age); 42

U.S.C. § 2000e-2(a) (gender). Unlawful discrimination may

be proved though direct evidence of impermissible motive,

or indirectly by the burden-shifting method outlined by

the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 801-03 (1973). See Bellaver, 200 F.3d at 492-

493. The McDonnell Douglas framework applies to both
8 No. 01-2275

Title VII and ADEA claims. See O’Regan v. Arbitration

Forums, Inc., 246 F.3d 975, 983 (7th Cir. 2001) (age and sex

discrimination); Paluck, 221 F.3d at 1009-11 (age and sex

discrimination). Krchnavy relies on the indirect method,

which requires her to establish the four distinct elements of

a prima facie case: (1) she is a member of a protected

class; (2) she was performing at a level that met her employer’s legitimate expectations; (3) she was subject to an

adverse employment action; and (4) she was treated differently than a similarly situated person outside the protected class. See McDonnell Douglas, 411 U.S. at 802;

O’Regan, 246 F.3d at 983.

Because unlawful discrimination can occur in a variety

of employment contexts, “we have adapted the requirements

for making a prima facie case in special cases to reflect the

reality of the workplace.” Michas v. Health Cost Controls of

Ill., Inc., 209 F.3d 687, 693 (7th Cir. 2000). In the traditional RIF case, an employer permanently eliminates a

position from the workplace. Bellaver, 200 F.3d at 494.

However, in a mini-RIF, such as this case, employees remaining at the company absorb the duties of their former

co-workers. See Michas, 209 F.3d at 693 (noting that in a

mini-RIF, a single employee is discharged, not replaced, and

his responsibilities are assumed by other members of the

workforce); Gadsby v. Norwalk Furniture Corp., 71 F.3d

1324, 1331 (7th Cir. 1995) (same). In a mini-RIF, we require

“that a plaintiff demonstrate that his duties were absorbed

by employees who were not members of the protected

class.” Michas, 209 F.3d at 693; see also Bellaver, 200 F.3d

at 495.

Once a plaintiff establishes a prima facie case, the burden

shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. If such a reason

is proffered, the plaintiff then bears the ultimate burden of

showing that it is a pretext for discrimination. McDonnell

Douglas, 411 U.S. at 802; Michas, 209 F.3d at 692-93. To
No. 01-2275 9

1 LG Seeds argued to the district court that Krchnavy failed

to establish the fourth prong of the prima facie case because

Krchnavy’s “principal” duties were in reality absorbed by 37-yearold Sally Coulter rather than 34-year-old Rich Cobian. However,

the district court rejected this argument because a portion of

Krchnavy’s former job duties were now being handled by Cobian.

Although LG Seeds briefly reasserts this argument on appeal, the

focus of its brief is that its reason for terminating Krchnavy (the

VEGA project) was not a pretext for unlawful discrimination.

show pretext in a RIF case, an employee must establish

that an improper motive “tipped the balance” in favor of

discharge. Testerman v. EDS Tech. Products Corp., 98 F.3d

297, 303-04 (7th Cir. 1996) (quoting Umpleby v. Potter &

Brumfeld, Inc., 69 F.3d 209, 213 (7th Cir. 1995)). It is

insufficient “for the employee to show that the employer

acted incorrectly or undesirably by firing him”; instead, “the

employee must show that the employer did not honestly

believe in the reasons it gave for firing him.” Wolf v. Buss

(America) Inc., 77 F.3d 914, 919 (7th Cir. 1996).

For the purposes of this appeal, LG Seeds concedes that

Krchnavy has established a prima facie case of age and sex

discrimination.1

 However, LG Seeds argues that the implementation of a RIF pursuant to the VEGA projection reorganization plan is a legitimate, nondiscriminatory reason

for Krchnavy’s termination. The RIF plan mandated the

closure of several facilities and the consolidation of the

customer service functions of accounting, invoicing, and

order entry at the Elmwood facility. LG Seeds asserts that

it discharged Krchnavy because her job responsibilities

satisfied the predetermined criteria established by the

VEGA project.

Although Krchnavy concedes that the VEGA project

might be, in theory, a legitimate reason for her termination,

she argues that false and inconsistent statements by LG

Seeds officials are strong evidence of pretext. For example,
10 No. 01-2275

when Krchnavy’s former supervisor, Craig Anderson, informed her that she would be terminated, Anderson did not

truthfully describe how the reorganization would affect

Squire, Cobian and himself, nor did he inform Krchnavy

of any plans to open another LG Seeds facility in River

Falls. Similarly, when LG Seeds’ human resource manager,

Babara Wittig, responded to inquiries from the EEOC, her

letters contained factual inaccuracies regarding the scope

of Cobian’s duties before and after the reorganization.

Yet, as LG Seeds correctly points out, there is nothing in

the record to suggest that either Anderson or Wittig participated in the decision to terminate her employment. An

inference of pretext may be permissible only when decisionmakers make false or inconsistent statements about the

circumstances of a particular employment decision. See

Castleman v. Acme Boot Co., 959 F.2d 1417, 1422 (7th Cir.

1992); cf. Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1293

& n.11 (7th Cir. 1997) (holding that derogatory comments

by nondecisionmakers cannot be relied on as evidence

of pretext and collecting cases); Jardien v. Winston Network, Inc., 888 F.2d 1151, 1154 (7th Cir. 1989) (holding that

“actions and comments by employees not involved in a

discharge decision cannot provide a basis for charging other employees with discrimination”). In respect to Anderson,

it is undisputed that he was informed of the termination decision by his supervisor, Roger Bonsack. Although

Krchnavy argues that there is a disputed issue of material

fact whether Anderson supplied information forming the

basis for the discharge decision, she fails to direct us to any

record evidence that would support such a conclusion. See

Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002)

(“It is well settled that conclusory allegations . . . without

support in the record, do not create a triable issue of fact.”

(citing Patterson v. Chicago Ass’n for Retarded Citizens, 150

F.3d 719, 724 (7th Cir. 1998))). Likewise, it is undisputed

that when Wittig identified employees who performed cus-
No. 01-2275 11

tomer service tasks, including data entry, accounting and

bookkeeping, she relied on RIF selection criteria set by

the VEGA project team.

Krchnavy argues that under our earlier decision in

Fortino v. Quasar Co., 950 F.2d 389 (7th Cir. 1991), a pretext analysis need not be restricted to decisionmakers in

all circumstances. In Fortino, we stated in dicta that it may

be possible for an employee “outside the chain of decision”

to have “valuable information bearing on the charge of

discrimination.” Id. at 396. Krchnavy argues that Anderson

fits within such an exception because he was Krchnavy’s

immediate supervisor, informed her of the termination

decision and was contacted by Wittig before she filed responses with the EEOC. However, even if we were to assume that Anderson was well-positioned to have “valuable

information” pertaining to the Krchnavy termination decision, his statements were not probative of age or gender

discrimination; rather, they were inaccurate statements

of how the Prescott closure would affect the employment

status of Squire, Cobian and himself. In Fortino, which also

resulted in a decision for the employer, the inadequacies

of the plaintiffs’ case were reversed. A manager gave a

speech in which he said that the average age of employees

in his group had dropped and thus the employees were

more capable of working longer hours. Id. at 395. Yet, this

court ruled that the statement was not probative of the

discrimination charge because the manager worked in a

completely different department and the plaintiffs failed

to put forward any evidence that he had information pertinent to the terminations in issue. Id. at 396.

Further, the deposition testimony suggests that the

communication between Wittig and Anderson regarding the

EEOC investigation was minimal. The only specific reference in the record relating to the investigation involved a

description of Cobian’s new duties at River Falls, which was

written by Anderson and relied on by Wittig to prepare the
12 No. 01-2275

2 In her deposition testimony, Barbara Wittig acknowledged that

she also consulted with Ed Germain, a member of the VEGA project team, in order to gather information for the response to the

EEOC. However, the substance of this communication is never

addressed during the course of the deposition, nor is it raised in

Krchnavy’s briefs.

EEOC response. Such a showing is insufficient to support

an inference of pretext.2

Finally, Krchnavy argues that LG Seeds’ official position

on Krchnavy’s termination is substantially contradicted

by subsequent events, thus casting doubt on its truthfulness. Specifically, Krchnavy was told that her position

within the company was being eliminated, with the majority of her duties being absorbed by Sally Coulter at Elmwood; but in reality, a substantial portion of her job responsibilities, along with her title of “Administrative Assistant,”

resurfaced in the River Falls facility and was assigned

to Cobian.

To support her interpretation of events, Krchnavy points

to our decision in Janiuk v. TCG/Trump Co., 157 F.3d

504 (7th Cir. 1998). In Janiuk, an employer initiated a

program of cost-cutting, which included the termination of

a 45-year-old sales manager. During subsequent age discrimination litigation, the employer maintained that the

sales manager position had been completely eliminated

while the plaintiff maintained that his job had been reassigned to a younger manager whom he had formerly supervised. Id. at 506. To buttress his theory, the plaintiff

pointed to an organization chart, created within days of

his termination, which essentially substituted the younger manager in the position formerly occupied by the plaintiff. Id. Such charts were routinely updated by the employer

so that they could be relied on both for internal operations

and for external sales presentations. Id. This court reversed
No. 01-2275 13

a grant of summary judgment for the employer, reasoning

that if the chart was an accurate depiction of the organization following the firing of the plaintiff, a reasonable juror

could conclude that the employer’s proffered justification

was pretextual. Id. at 507-08.

Janiuk, however, presented a much stronger case of

pretext than the case now before us. While it is true that

Cobian’s position at River Falls was titled “Administrative Assistant/Marketing Support,” which is similar to

Krchnavy’s former title of “Sales/Administrative AssistantOffice Manager,” it is also true that Cobian’s title in

Prescott was “Sales and Administrative Assistant-Warehouse and Shipment Coordinator.” As the similar titles

suggest, this case involved a reassignment of an employee’s

specific duties rather than a replacement of one employee

by another, as allegedly occurred in Janiuk. Prior to the

Prescott closure, it is undisputed that Cobian occasionally performed many of Krchnavy’s duties. Following the

VEGA project reorganization, some of Krchnavy’s duties

were consolidated at Elmwood and the balance were

ostensibly assigned to Cobian in River Falls. In addition,

Cobian also retained the job of overseeing a mini-warehouse. Although it is certainly arguable that Krchnavy was

well-qualified for Cobian’s River Falls position, this line

of reasoning is not relevant to the underlying issue of pretext. Instead, it merely questions the business judgment

of LG Seeds. It is well settled that this line of analysis

does not justify our intervention. See, e.g., Ritter v. Hill ‘N

Dale, 231 F.3d 1039, 1044 (7th Cir. 2000) (“This court has

consistently emphasized that it will not ‘sit as a super

personnel department to review an employer’s business

decisions.’ ” (quoting Ransom v. CSC Consulting, Inc., 217

F.3d 467, 471 (7th Cir. 2000))).
14 No. 01-2275

III.

In summary, Krchnavy has failed to put forward sufficient evidence to permit a reasonable juror to conclude that

LG Seeds’ proffered reason for her discharge was a pretext

for a decision motivated by age or gender. Therefore, claims

under both the ADEA and Title VII must fail. The judgment

of the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—6-24-02