the October 2001 RIF. Defendant argues that none of the “similarly situated” employees who
were not discharged were “substantially younger” than plaintiff, and thus their retention does not
create an inference of discrimination. In the Seventh Circuit “substantially younger means at
least a ten-year age difference; any age disparity less than ten years is presumptively
insubstantial.” Id. at 1141. Thus, defendant argues that because Clarey, the youngest of the
similarly situated employees retained, was only eight years younger than plaintiff, the age
disparity is presumptively insubstantial, meaning plaintiff cannot establish a presumption of
discrimination. This lack of a substantial age disparity hurts, but is not fatal, to plaintiff’s case.
“{I]n cases where the disparity is less [than ten years], plaintiff still may present a triable claim if
[he] directs the court to evidence that [his] employer considered [his] age to be significant.” Id.

In the instant case, plaintiff's theory is that at defendant an employee either made partner
by age 40 or was phased out. Thus, it is not surprising that there is not a great age disparity
between those that survived the RIF and plaintiff, who didn’t. Under plaintiff's theory, the
employees in their mid to late 30s were in position and still had a few chances to make partner
before they reached 40. According to plaintiff, the handwriting was on the wall for him when he
did not make the long list in January, when he had just turned 40. Therefore, the fact that Cabay
chose the only manager in the supply chain group over 40 to be the one discharged fits within
plaintiff's theory and, although thin, is sufficient to establish a presumption of discrimination and
a prima facie case of discrimination.

That shifts the burden to defendant to articulate a legitimate non-discriminatory reason
for the decision to discharge plaintiff rather than one of the other managers. Robin, 200 F.3d at

1088. It is undisputed that in 2001 defendant experienced a downturn in business and underwent


CONCLUSION

For the reasons set forth above, defendant’s motion for summary judgment is granted.

ENTER: March 21, 2005

“day. GSe_

Robert W. Gettleman
United States District Judge



employment decision. At this point, the inference of discrimination disappears and the plaintiff
must then supply evidence from which a jury could conclude that the reasons offered were
pretextual for an intentional discrimination. Id. Because plaintiff has insufficient evidence
(either direct or circumstantial) to establish intentional discrimination under the direct method, he
has elected to attempt to defeat defendant’s motion for summary judgment under the indirect
method.

In an age discrimination RIF context, a claimant meets the burden of establishing a prima
facie case if he demonstrates that: (1) he is a member of the protected class of 40 or older; (2) he
was performing to the employer’s legitimate expectations; (3) he was subject to an adverse
employment action; and (4) similarly situated and substantially younger employees were treated
more favorable. Fisher, 139 F.3d at 1141.

Defendant does not dispute the first three elements of the prima facie case. Plaintiff was
40 years old at the time of his discharge, had received exemplary reviews, and was discharged
pursuant to the RIF. Defendant does challenge plaintiff's ability, however, to demonstrate that
similarly situated substantially younger employees were treated more favorably.

In particular, defendant argues that plaintiff must show that employees substantially
younger who retained their job possessed analogous attributes, experience, education, and
qualifications relevant to the position. At the time of the discharge, plaintiff worked in the
supply chain service line of the EXHT East Group. There were six managers in the group.
Plaintiff, who was born January 1, 1961; Ashley Scott Clarey, born October 4, 1969; David
Grenier, born June 5, 1968; Sanjeen Jain, born September 28, 1965; Sean Thomas Talty, born

July 10, 1961; and Axel Willie, born April 9, 1963. Only plaintiff was selected for discharge in


several RIFs. Cabay, as Managing Partner for the E&HT East Group, was required to make
several reductions throughout 2001. It is also undisputed that the E®HT East Group was
overstaffed and cuts had to be made. Cabay testified that he based his decision on eliminating
positions that made the most economic and business sense. He looked at employee chargeability,
overall headcount, sufficient skill coverage in the various service lines, and ensuring that his
organization was sized right for the amount of business it had. Plaintiff's name appeared on the
list of employees for potential discharge based on his chargeability, which was lower than it
should have been at that point in his career. Cabay made a decision that the supply chain service
line was overstaffed and that one manager would have to be let go. Among those managers
plaintiff had the lowest chargeability.

Having articulated a legitimate non-discriminatory reason for plaintiffs termination, the
burden shifts back to plaintiff to submit sufficient evidence for a jury to conclude that
defendant’s explanation is a pretext or lie. This is where plaintiff's case fails. To establish
pretext, plaintiff points to Toshiya Akizawa, a manager under 40 who was not discharged in the
RIF despite having a chargeability of only 1%. Plaintiff's chargeability was 37% at the time of
his discharge. This evidence is insufficient to establish that Cabay is lying. First, Akizawa was
in the solutions engineering group, not the supply chain group. Cabay testified that he first
determined the need to cut from the supply chain group and then looked at the chargeability of
the managers within that group. Therefore, plaintiff's chargeability was never compared to
Akizawa’s, and Akizawa cannot be considered “similarly situated” to plaintiff. Plaintiff has
presented no evidence to challenge Cabay’s determination that the cut should have come from

the supply chain group. Moreover, Cabay, who was older than plaintiff, testified that he was not


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
BRIAN D. POPOFF, )
)
Plaintiff, )
) No. 02 € 9197

v. )

) Judge Robert W. Gettleman
ACCENTURE, LLP, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Brian Popoff has sued his former employer, Accenture, LLP, alleging that his
employment was terminated in violation of the Age Discrimination and Employment Act
(“ADEA”), 42 U.S.C. § 1621 et. seq, Defendant has moved for summary judgment pursuant to
Fed. R. Civ. P. 56. For the reasons set forth below, the motion is granted.

FACTS

Plaintiff, born on January 1, 1961, was hired by defendant, a global management and
technology consulting firm, in August 1995, as a senior consultant. On September 1, 1997, he
was promoted to senior manager. In 2000 and 2001 plaintiff worked as a senior manager in the
Electronics & High Tech (“E&HT”) Group, which provides consulting services for the electronic
and high tech industries. E&HT was divided by geographical location and client group. Plaintiff
worked in the EXHT East Group. Mike Cabay was the managing partner for EXHT East during
this time period, and was plaintiff's ultimate supervisor.

In early January 2001 plaintiff did not make the initial “long list” of employees eligible

for partnership. At that time he had just turned 40 years old. In October 2001, he was discharged


aware of plaintiff's age at the time he made the decision. Plaintiff tries to dispute this, but he has
no evidence to do so, other than to suggest that Cabay had to know his age because it was in his
personnel file. Cabay testified without contradiction that he never saw plaintiffs personnel file.

Finally, and perhaps most telling, after learning that Cabay had put plaintiff on the initial
reduction list, plaintiffs immediate supervisors, Ed Starr and Rob D’Abanzo, discussed
plaintiff's situation. They talked about ways to save plaintiff’s job and even discussed bringing
plaintiff into their practice group. Ultimately, however, they concluded that there was nothing
they could do. They did not have space in their group and were concerned about plaintiff's
ability to succeed in that group. Despite being plaintiff's staunchest supporter, D’ Abanzo
testified that he understood Cabay’s concerns with plaintiff's inability to sell and contribute.
When asked what he would have done if he were in Cabay’s position, D’ Abanzo testified that he
would have discharged plaintiff, based on plaintiff's inability to sell.

Plaintiff disagrees with Cabay’s and D’Abanzo’s assessment of his sales skills, and has
presented some evidence to support his claim that his sales figures were skewed because he
worked on a number of matters where it was clear from the start that no sale would be
consummated. He has presented no evidence, however, to suggest that Cabay has been anything
but truthful in his explanation of why he chose plaintiff for termination. Cabay’s decision might
have been misguided, but there is no evidence to suggest that it was in any way based on
plaintiff's age.

Because plaintiff cannot raise a question of fact as to pretext, defendant’s motion for

summary judgment is granted.


as part of a company-wide reduction in force (“RIF”). Cabay made the decision not to promote
plaintiff to partner and also selected plaintiff for discharge. Cabay is six years older than
plaintiff.

DISCUSSION

As an initial matter, the parties spend a great deal of effort arguing about whether
plaintiff's “claim” that he should have made the long list in January 2001 is actionable. It is
unclear how this dispute arose, because plaintiff's complaint contains no such claim. The
complaint, which contains no factual allegations, merely alleges that defendant “engaged in the
acts of age discrimination complained of in Exh. A.” Exhibit A is the plaintiff's charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”) filed on July 31,
2002, which lists the earliest act of discrimination as occurring on October 5, 2001, the date
plaintiff was discharged. Because the EEOC charge complains only of plaintiff's discharge as
discriminatory, the complaint makes no claim that plaintiff's failure to make the long list was the
result of intentional age discrimination.

Moreover, as defendant argues, plaintiffs are required to file a charge of discrimination
with the EEOC within 300 days of the allegedly discriminatory act. See 42 U.S.C. § 2000e-
5(a)(1). Plaintiff learned that he did not make the long list in January 2001, more than 300 days
before he filed the EEOC charge. Therefore, even if the complaint made a claim for failure to be
placed on the long list, the claim would be time-barred.

That leaves the plaintiff's claim that his termination was based on his age as the only
issue in the case. Defendant has moved for summary judgment, arguing that plaintiff cannot

establish a prima facie case of discrimination. Summary judgment is appropriate when there is


no genuine issue as to any material fact and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); Celotex v. Catrett, 477 U.S. 317, 322-23 (1986). In determining
whether a genuine issue of material fact exists, the court views the record and all reasonable
inferences drawn therefrom in the light most favorable to the non-moving party. The non-
moving party cannot, however, rest on the mere allegations or denials in the pleadings, but must
present sufficient evidence to show the existence of each element of his case on which he bears
the burden of proof. The evidence must be sufficient to allow a jury to render a verdict in his
favor. Robin v. Espo Engineering Comp., 200 F.3d 1081, 1088 (7" Cir. 2000).

A plaintiff can avoid summary judgment in an employment discrimination case either by
submitting enough evidence, whether direct or circumstantial, of discriminatory motivation to
create a triable issue (“direct method”), or by establishing a prima facie case under the now
familiar McDonnell Douglas formula (“indirect method”). Fisher v. Wayne Dalton Corp., 139

F.3d 1137, 1140 (7" Cir. 1998) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973)). The direct method approach generally requires direct evidence, such as statements
indicating that the decision in question was made on a discriminatory basis, e.g., “I fired you

because of your age.” Robin, 200 F.3d at 1088. Because employers rarely offer such smoking

gun remarks indicating intentional discrimination, the Supreme Court developed the McDonnell
Douglas burden shifting approach as a means to evaluate indirect evidence of discrimination at
the summary judgment stage. Id. Under this approach, the plaintiff must submit sufficient
evidence to establish, by a preponderance of the evidence, a prima facie case of discrimination.
If successful, a presumption of intentional discrimination arises. The burden then shifts to the

defendant to come forward with evidence of a legitimate and non-discriminatory reason for the