1 Although in their corporate disclosure statement defendants

have listed themselves as “Fairbanks Morse Engine Division,

Division of Coltec Industries,” parent company “Goodrich Corporation,” according to Fairbanks’ web site, Fairbanks is currently a division of EnPro Industries, Inc., see http://www.

fairbanksmorse.com, a wholly-owned subsidiary of Goodrich

Corp. Coltec Industries, Inc., which is also a subsidiary of

Goodrich Corporation. See http://www.sec.gov/Archives/edgar/

data/42542/000095014402001786/0000950144-02-001786-

index.htm. Correctly identifying corporate ownership is crucial as

a division of a company cannot be sued. See Schiavone v. Fortune,

477 U.S. 21, 28 (1986).

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-1166

JOHN BALDERSTON and JOHN GABRIEL,

Plaintiffs-Appellants,

v.

FAIRBANKS MORSE ENGINE DIVISION

OF COLTEC INDUSTRIES,

1

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 00 C 68—Barbara B. Crabb, Chief Judge.

____________

ARGUED NOVEMBER 13, 2001—DECIDED APRIL 17, 2003

____________
2 No. 01-1166

Before HARLINGTON WOOD, JR., EASTERBROOK, and

KANNE, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge. Plaintiffs John

Balderston (“Balderston”) and John Gabriel (“Gabriel”)

brought this action under the Age Discrimination in

Employment Act of 1967, as amended, 29 U.S.C. § 626

(“ADEA”), against Fairbanks Morse Engine Division of

Coltec Industries (“Fairbanks”), challenging Fairbanks’

actions in terminating plaintiffs. Fairbanks maintains that

plaintiffs lost their jobs as a result of a company reorganization and reduction-in-force (“RIF”). The district court

granted summary judgment in favor of Fairbanks, finding

that even if plaintiffs had established a prima facie case

of age discrimination, they had not offered sufficient

evidence to support a finding that Fairbanks’ stated reasons

for termination were not pretextual. Plaintiffs appeal. We

agree with the district court’s order and affirm.

I. BACKGROUND

A. Balderston

At the time in question, Fairbanks evidently was a

division of Coltec Industries, which is a wholly-owned

subsidiary of Goodrich Corporation. Fairbanks manufactures large engines that are sold to private and public

sector customers for uses such as powering naval vessels

and generating electricity for businesses and utilities.

Balderston, born on June 25, 1939, began his career at

Fairbanks in 1971 as an engineer and eventually became

vice president and general manager of product installation and service. At the time of his termination on October

8, 1998, at age 59, Balderston was responsible for sales

and profits associated with product and customer service,

new engine installations, aftermarket parts sales, and

remanufactured products sales, in addition to overseeing

Fairbanks’ customer service centers in Houston, Texas;
No. 01-1166 3

Norfolk, Virginia; Seattle, Washington; Beloit, Wisconsin;

and Calgary, Canada.

Warren Martin, born on March 29, 1956, had been

with Fairbanks since 1989 and rose from director of parts

sales to vice president and general manager of parts

sales. Balderston stated that at a company meeting in

1996, Martin, then Fairbanks’ youngest vice president at

age 42, remarked that he favored eliminating all managers over 55. Balderston, who had previously been told

he might be considered as a candidate for president of the

company, was already over 55. At the meeting, the executives that were present discussed the feasibility and economics of offering an early retirement package to employees over age 55. It was decided that it would not be

economical to do so and could lead to the loss of key employees whose skills and experience the company wished

to retain. Martin left Fairbanks in 1997 to serve as president of another division of Coltec but returned in June

1998, at age 44, as president.

Anticipating the reorganization, Martin had not considered promoting Balderston because Martin had a negative opinion of Balderston’s conduct and performance as

a result of his experience working with Balderston from

1989 to 1997. Martin believed that Balderston had engaged in unnecessary travel, had failed to plan trips to

take advantage of low airfares, arrived for work late and

left early, could not always be found during the work day,

failed to treat others in an appropriate manner, failed to

organize work and administrative matters, did not train

field service personnel properly, and did not promote

the sale of full service engine maintenance contracts adequately. Part of Martin’s impressions were also based on

his discussion with Balderston’s former secretary, who

stated that Balderston had verbally mistreated her on

several occasions, causing her to resign. Affidavits of former Fairbanks’ employees supported the beliefs of Martin
4 No. 01-1166

that Balderston arrived late for work, left early, and treated

others inappropriately.

On June 5, 1998, Martin wrote a memorandum to

Balderston in order to establish:

a specific set of rules, guidelines, and expectations for

your work habits, work ethic, treatment of personnel,

travel and business focus going forward. The need

for this meeting is brought about by my own personal

experience working with you, previous input from

Dick Dashnaw [former president of Fairbanks] and

John Bottorff [vice president of human resources], and

observations of others. I want to begin our business

relationship with you knowing very clearly the types

of expectations I have of you in these areas.

Martin met with Balderston that same day to discuss

his requirements for Balderston: (1) to work full days and

spend his time in a productive manner; (2) to pay attention to details and follow-up on the completion of projects

and assignments; (3) to devote the majority of his efforts

to the sale of full service engine maintenance contracts;

(4) to develop the remanufactured engine program at the

Houston facility; and (5) to develop and execute a comprehensive training program for all field service personnel.

Balderston was told his performance would be unsatisfactory if he failed to meet the expectations outlined in the

memo. On June 8, 1998, in a memo placed in Balderston’s

personnel file, Bottorff noted that he had spoken with

Balderston about the possible outcomes of the reorganization, including demotion or replacement, and indicated

that Balderston was going to try and meet Martin’s expectations.

Prior to Martin’s departure in 1997, Fairbanks’ sales

and marketing department was organized into three

areas with a vice president for each division: (1) engine

sales and related marketing under Barry Cockerham, born
No. 01-1166 5

on September 30, 1953; (2) parts sales and marketing under Barry Hall, born on September 11, 1953; and (3) service and product installation under Balderston. Upon his

return, Martin wanted to consolidate the three separate

areas of sales and marketing under one corporate executive, in order to create a more effective and efficient department which he felt would benefit the company as a

whole.

On June 26, 1998, Martin named Cockerham, age 45,

who had been vice president of engine sales since June

1997, as senior vice president of sales and marketing,

overseeing all three departments. Cockerham had more

than twenty years of successful sales and marketing

experience at the managerial and executive levels and had

experience with negotiating legal claims filed by Fairbanks’ customers.

During the three-month period from July to September

1998 when Cockerham was developing the reorganization

plan, a number of incidents led Cockerham to believe

Balderston was not suited for a working-level management position. For example, Cockerham was unhappy

with Balderston’s work on a settlement agreement concerning a billing dispute with one of Fairbanks’ customers.

Balderston negotiated a financial settlement but had not

secured a formal agreement or a release of claims signed

by the customer.

Fairbanks had been trying to break into the government market and was interested in obtaining more work

with the Military Sealift Command (“MSC”), which operated a fleet of vessels and was considered one of Fairbanks’ important government customers. In a monthly

report to Cockerham in late August 1998, Balderston stated

that he was negotiating a contract with the MSC to monitor and maintain the fleet’s operating condition, which

he valued at $304,000 a year. However, the contract

Balderston eventually secured was for $6,000 a year for

engine maintenance.
6 No. 01-1166

2 PowerPoint is a Microsoft computerized graphics presentation program.

Cockerham was also not satisfied with a two-day meeting/presentation in July 1998 with the MSC. Balderston

was in charge and assigned the task of organizing and

running the meeting to Gabriel. Cockerham attended

approximately two hours of the meeting and informed

Balderston that all of the presentations should have

been done in PowerPoint,2

 instead of some PowerPoint and

some overhead projections, that Gabriel should not have

worn blue jeans, and that Balderston should have prepared written follow-up. Cockerham later found out that

the MSC had agreed to prepare a written follow-up.

Balderston was also responsible for the Amocar project

in 1998, which involved remanufacturing two state-of-theart, fuel efficient, low emission EnviroDesign® engines. The

project was bid on a low profit margin in order to make

the sale yet stay within the customer’s budget. Several

problems caused cost overruns because Houston operations, which worked on the project, had no previous experience with remanufacturing an EnviroDesign® engine.

As vice president of product installation and services,

Balderston was responsible for controlling service cost

installations. Cockerham believed that Balderston had not

been sufficiently involved in overseeing the project and

held him accountable for the level of cost overruns.

In August 1998, Balderston traveled to Russia because

a Fairbanks’ engine that had been shipped to a customer

in Russia had been damaged during unloading and the

customer wanted someone from Fairbanks to evaluate

the condition of the engine. The customer’s shipping

agent stated that they would reimburse Fairbanks for

Balderston’s travel expenses. However, the shipping agent

eventually refused to pay, leaving Fairbanks responsible
No. 01-1166 7

for $5,000 in travel expenses. Although Balderston had not

requested a purchase order or letter of credit for his

travel expenses, something which he had never been required to obtain for any of his previous travel, Cockerham

felt it was irresponsible of Balderston to have relied on

the shipping agent’s letter of reimbursement.

In August and September 1998, Balderston negotiated

for repair work and parts sales on the MV Nestos, a ship

which had suffered a major accident. Gabriel submitted

the initial bid but lost to a competitor. Balderston later

submitted a bid to replace the crankshaft. That job also

went to a competitor. Although Fairbanks may have lost

the bid on the crankshaft because it refused a request

made by the owner’s representative to inflate the price

of the crankshaft work for submission to the insurance

company, Cockerham still felt that Balderston should have

secured the contract for Fairbanks.

At the time Cockerham terminated Balderston, Cockerham believed that Balderston’s service group was $1 million dollars below estimated earnings. In fact, the financial documents which Cockerham relied upon were incorrect due to a computer conversion that had started in July

1998. The error was not discovered until after Balderston

was terminated. The revised financial statements indicated that as of September 30, 1998, Balderston’s department was meeting the original budget and was within

$15,000 of meeting a revised budget.

As part of the reorganization, Cockerham eliminated

the three separate departments and reorganized sales

and marketing into six departments: government programs; marketing; sales; Latin American operations; service; and Houston operations. Each department would be

supervised by a working-level director who reported to

Cockerham. During the restructuring, Cockerham would

eliminate and consolidate any positions he determined
8 No. 01-1166

were unnecessary. Balderston’s responsibilities were delegated to others; his responsibilities (1) for service and parts

sales to commercial customers was transferred to the

director of sales, (2) for service and parts sales to Latin

America, South America, and Mexico was transferred to

the director of Latin America operations; (3) for technical

support was transferred to the director of marketing

and the director of government programs; (4) for management of the Houston and Calgary operations was transferred to the director of Houston operations; and (5) for

supervising the Norfolk and Seattle service and support

personnel and warranty management was transferred to

the director of service.

Balderston, 59, and Hall, 44, vice president of parts

sales, were both demoted and no longer reported to the

president of Fairbanks but to Cockerham. In addition,

Cockerham was responsible for Balderston’s and Hall’s

performance assessments. Balderston’s salary was reduced from $119,150 to $102,600. Hall’s salary of $88,000

was already below the minimum salary for his grade level,

and was therefore not reduced further.

Hall was reassigned as director of Latin American

operations because he had significant experience in Latin

American sales with both Fairbanks and a former employer, had increased Fairbanks’ sales in Latin and South

American while vice president of parts sales, and was

familiar with the customers, customs, language, and

business needs of Latin America. Kurt Young, 54, was

offered the position of director of Houston operations.

Dennis Mowry, 42, was offered the position of director of

service, which included supervision of the Norfolk and

Seattle service centers and warranty management.

Following the elimination of Balderston’s position,

Cockerham felt that Balderston should not be retained in

a director-level capacity. Balderston felt he should have
No. 01-1166 9

been appointed director of Houston operations. Cockerham

did not appoint Balderston to any of the director positions because he thought, incorrectly, that Balderston had

not held a working-level management position for several years. In fact, Balderston had served as a workinglevel manager in Houston. Balderston maintains that

Cockerham told him that he would have a job when Fairbanks further reorganized. However, shortly after Martin

and Cockerham had a meeting in September 1998 to discuss Balderston’s employment, Cockerham fired Balderston.

Mowry, 42, who had worked under Balderston as head

of the Houston facility, replaced Balderston as head of the

service department. Balderston was not considered for

Mowry’s former position in lieu of termination, even though

Balderston had previously worked in that position.

B. Gabriel

Gabriel, born on October 18, 1944, joined Fairbanks

in 1969 and since 1986 had been a manager in Beloit,

where Balderston was Gabriel’s supervisor. Gabriel’s primary responsibility was management of the MSC’s government account.

In June 1997, Balderston reorganized the service department in Beloit and promoted Eric Ericson, born October

5, 1962, to installation and product service manager. From

1993 to 1997, Ericson had been responsible for oversight

technical support to Avondale Shipyards (“Avondale”),

which builds ships for the U.S. Navy and the MSC. Ericson had worked on site at Avondale in New Orleans for

a number of years managing the entire support and installation effort, supervising numerous employees, and coordinating subcontractors and field support personnel.

He was also responsible for controlling installation costs.

Ericson continued as the company’s primary contact

with Avondale after the promotion to Beloit. Ericson had
10 No. 01-1166

excellent relations with the people at Avondale and Fairbanks had received only positive feedback from Avondale

regarding Ericson’s performance.

Balderston believed that the change in Gabriel’s responsibilities occurring in June 1997 resulted in a deterioration

of his attitude toward his job and patience with others.

Although complaints had been received from customers

stating that Gabriel could be confrontational and uncooperative, Balderston was not aware of these facts.

Balderston had discussed with Gabriel the need to “soften

his approach” in working with others. Gabriel conceded

that he could be rude, terse, or inappropriate at times.

Other employees complained that Gabriel was difficult.

Cockerham believed only one person was needed to act

as manager of technical services for government accounts.

Cockerham asked Jan Connolly, who had been manager of

government programs and had worked with both Gabriel

and Ericson, to select the person she wanted to fill the

manager’s position as Cockerham had appointed her

director of government programs. Connolly selected Ericson.

Connolly believed that Avondale was a complex and

demanding client with numerous problems and based her

decision in part on her belief that it would be easier to

transfer MSC duties to Ericson rather than transferring

Avondale duties to Gabriel.

Gabriel, who had been second-in-command in the service

department, was fired twenty minutes after Balderston.

He was 54 and the employee with the most experience in

the service department. Gabriel maintains he was terminated in favor of three younger employees, Ericson, Mark

Desing, and Tom Stull, and was denied consideration for

a fourth opening.

Plaintiffs filed suit in the district court alleging that

Balderston’s and Gabriel’s terminations were part of a

systematic elimination of older employees through the
No. 01-1166 11

use of RIFs and sought relevant statistical data of the

terminations of older employees beginning with Martin’s

initial hiring in 1989 until the termination of Balderston

and Gabriel. The court limited the parameters of the data

requested. Fairbanks filed a motion for summary judgment accompanied by numerous affidavits. Plaintiffs deposed Fairbanks’ key affiants and responded with a memorandum and affidavits of their own. Fairbanks replied

and attached thirteen new affidavits. Plaintiffs moved

to strike the reply affidavits, or, alternatively, requested

permission to depose the new affiants and then file a

response. The district court denied plaintiffs’ motion and

granted summary judgment in favor of Fairbanks, ruling

that plaintiffs had not established that the decisionmakers did not honestly believe the subjective conclusions

given as the reasons for terminating plaintiffs.

Plaintiffs appeal (1) the order refusing to strike the

thirteen affidavits submitted with Fairbanks’ reply and

refusing leave to take discovery with respect to the new

affidavits, (2) the court’s order denying plaintiffs’ motion

to compel discovery in order to access statistical data, and

(3) the order granting summary judgment in favor of

Fairbanks.

II. ANALYSIS

A. Evidentiary Issues

1. Motion to strike affidavits

A district court’s refusal to strike or disregard portions

of an affidavit in a motion for summary judgment is

reviewed for an abuse of discretion. Adusumilli v. City of

Chicago, 164 F.3d 353, 359 (7th Cir. 1998).

Fairbanks filed a motion for summary judgment along

with affidavits. Plaintiffs filed a response to that motion

with their own affidavits. Fairbanks then filed a reply
12 No. 01-1166

to plaintiffs’ response including additional affidavits.

Plaintiffs moved to strike the affidavits filed with the reply, or, in the alternative, requested “permission to depose the affiants on the new material and to file a response.” Plaintiffs challenge the district court’s refusal to

strike the affidavits in the reply, contending that the

district court “relied in part on the new material asserted

in the thirteen affidavits” in granting summary judgment.

Under FED. R. CIV. P. 56(a), either party may make a

motion for summary judgment, with or without supporting

affidavits. The district court may grant judgment 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 the moving party is entitled to a judgment as a

matter of law.” FED. R. CIV. P. 56(c). The nonmoving

party may respond, with or without affidavits, and “must

set forth specific facts showing that there is a genuine

issue for trial.” FED. R. CIV. P. 56(e). Summary judgment

should not be entered “until the party opposing the motion has had a fair opportunity to conduct such discovery

as may be necessary to meet the factual basis for the

motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986).

Under Rule 56(a), Fairbanks was correctly allowed to

submit affidavits with its motion for summary judgment. Plaintiffs were then allowed to submit affidavits

with their response to the summary judgment motion

under 56(c). There is no blanket prohibition from filing

additional affidavits when a movant for summary judgment files a reply brief following a nonmovant’s response.

See Egger v. Phillips, 710 F.2d 292, 295 (7th Cir. 1983),

overruled on other grounds by Feit v. Ward, 886 F.2d 848,

856 (7th Cir. 1989).

However, plaintiffs did not request a continuance “to

permit affidavits to be obtained or depositions to be taken
No. 01-1166 13

or discovery to be had,” as allowed by Rule 56(f). A Rule

56(f) motion requires a party to set forth a justification

for the continuance, which includes providing a compelling argument why discovery should be continued. See

Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1056-57

(7th Cir. 2000). Plaintiffs failed to make a Rule 56(f) motion and failed to provide a compelling justification to

continue discovery as to the new affidavits.

The district court judge believed that she was “required

to consider new information that does not contradict

deposition testimony and I have done so.” See Buckner v.

Sam’s Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996) (“As a

general rule, the law of this circuit does not permit a

party to create an issue of fact by submitting an affidavit

whose conclusions contradict prior deposition or other

sworn testimony.”); Kalis, 231 F.3d at 1055-56. The district court noted that although plaintiffs’ affidavits in

response to the summary judgment motion did not contradict plaintiffs’ deposition testimony, the affidavits

added “entirely new matters to ‘flesh out’ the deposition

testimony.” For instance, in his deposition, Balderston

had stated that he never thought he should have been

considered for Cockerham’s position. But in plaintiffs’

response to summary judgment, Balderston alleged that

he could have been but was not considered for Cockerham’s position and that Cockerham was not qualified.

Many, if not all, of the plaintiffs’ affidavits were submitted to refute statements and assertions made in Fairbanks’

motion for summary judgment. The district court felt

this was “something of an ambush” for the moving party,

and, therefore, allowed all of the affidavits, those of both

plaintiffs and defendants, in order to make a fair determination of the facts. However, in denying plaintiffs’ motion

to strike the affidavits accompanying Fairbanks’ reply,

the court correctly identified the new affidavits filed

with Fairbanks’ reply as providing cumulative informa-
14 No. 01-1166

tion supporting allegations in defendant’s answer to plaintiffs’ complaint that there were problems with both Balderston’s and Gabriel’s performance. These did not represent “new” arguments as plaintiffs suggest.

The district court’s findings, taken from the parties’

proposed findings of fact, carefully took into consideration all of the permissible evidence in determining which

facts were material and undisputed. We do not find it

unreasonable that the district court refused to strike the

new affidavits filed with Fairbanks’ reply to plaintiffs’

response. See Adusumilli, 164 F.3d at 359 (holding that

decisions “that are reasonable, i.e., not arbitrary, will not

be questioned”) (citation omitted). In addition, in this

type of situation similar to a Rule 56(f) motion, reversal

of a district court’s denial is made only where there is

an abuse of discretion which results in actual and substantial prejudice to the party seeking additional discovery. See Kalis, 231 F.3d at 1055-56. We find no actual

and substantial prejudice and no abuse of discretion.

2. Motion to compel discovery

The standard of review of the district court’s discovery

decisions to not allow additional pretrial discovery is

abuse of discretion. Olive Can Co., Inc. v. Martin, 906 F.2d

1147, 1152 (7th Cir. 1990). In order to succeed on a claim

that the district court erroneously limited discovery, the

appellant must show that “the decision resulted in actual and substantial prejudice.” Stagman v. Ryan, 176

F.3d 986, 994 (7th Cir. 1999) (citation omitted).

Plaintiffs in this case have alleged a company-wide

“campaign to elevate its more youthful employees because of their age.” Plaintiffs requested discovery of extensive statistical data in order to show a pattern or practice

of discrimination. See Adams v. Ameritech Serv., Inc., 231

F.3d 414, 423 (7th Cir. 2000). Although statistical evidence
No. 01-1166 15

can be relevant to prove a pattern or practice of discrimination, it is not usually sufficient in itself. See id. at 423.

The Supreme Court has emphasized the importance of

looking to the proper base “group” when making statistical comparisons and examining all of the surrounding

facts and circumstances which create the statistics themselves. See Hazelwood Sch. Dist. v. United States, 433 U.S.

299, 308, 312 (1977) (citation omitted). The defendant

must then be allowed to rebut any inference of discrimination indicated by the statistics. Id. at 310. In Radue v.

Kimberly-Clark Corp., 219 F.3d 612, 614 (7th Cir. 2000), the

Seventh Circuit upheld summary judgment for an employer in an ADEA case where the employee’s prima facie

case was primarily composed of statistics showing that

older employees were treated less favorably than younger

employees in various RIFs. The appellate court determined that the statistics were flawed in a number of

ways and that the plaintiff had no other sufficient evidence to support his case. Id. at 619-20. In order to be

considered, the statistics must look at the same part of

the company where the plaintiff worked; include only

other employees who were similarly situated with respect

to performance, qualifications, and conduct; the plaintiff

and the other similarly situated employees must have

shared a common supervisor; and treatment of the other

employees must have occurred during the same RIF as

when the plaintiff was discharged. Id. at 617-18.

Plaintiffs sought company-wide personnel information

“on any present or former employees at the supervisor

level or above,” and personnel records of all employees in

the parts department who were laid off, terminated, or

retired between 1989 and 1998. The magistrate judge to

whom the discovery issue was assigned limited the scope of

plaintiffs’ discovery request to employees who were similarly situated to the plaintiffs. Plaintiffs filed a motion

asking the district court to modify the magistrate judge’s
16 No. 01-1166

order but the district court declined. When requesting

discovery in an age discrimination suit, the “other employees’ circumstances [must be] close enough to [plaintiff]’s to

make comparisons productive.” Gehring v. Case Corp., 43

F.3d 340, 342 (7th Cir. 1994). District court judges

“have substantial discretion to curtail the expense and

intrusiveness of discovery” in limiting an adverse party’s

request for broad discovery of personnel files. Id. (citation

omitted).

The district court limited discovery to the relevant corporate department, similarly situated employees,

time period, and decisionmakers. Where the district court

was uncertain as to possible relevance, the judge conducted an in camera review of the documents, after which

a determination was made. There was no abuse of discretion.

B. Summary Judgment

1. Standard of review

We review de novo a district court’s ruling on a motion

for summary judgment. Gordon v. United Airlines, 246

F.3d 878, 885 (7th Cir. 2001) (citations omitted). To succeed on a motion for summary judgment, the moving

party must show, through the pleadings and other record

materials, such as depositions, answers to interrogatories,

admissions, and affidavits, that there is no genuine issue

of material fact and that the moving party is entitled to

judgment as a matter of law. See FED. R. CIV. P. 56(c);

Celotex, 477 U.S. at 322-23. All evidence and inferences

must be viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). However, the nonmoving party must set forth

specific facts, more than mere conclusions and allegations,

sufficient to raise a genuine issue for trial; “the mere

existence of some alleged factual dispute between the
No. 01-1166 17

parties will not defeat an otherwise properly supported

motion for summary judgment . . . .” Id. at 247-48 (emphasis in original); see Celotex, 477 U.S. at 323-24.

2. ADEA Claim

The ADEA makes it unlawful for an employer “to fail

or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C.

§ 623(a)(1).

Under a disparate treatment theory, plaintiffs must

prove that their age “actually played a role in [the employer’s decisionmaking] process and had a determinative

influence on the outcome.” Reeves v. Sanderson Plumbing

Prod., Inc., 530 U.S. 133, 141 (2000) (citation omitted). To

succeed on an ADEA claim, a plaintiff must establish that

he would not have been terminated “but for” his employer’s intentional age-based discrimination. See Chiaramonte

v. Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th Cir.

1997).

A plaintiff in an age discrimination case may prove

discrimination by presenting either direct or circumstantial

evidence. See Adreani v. First Colonial Bankshares Corp.,

154 F.3d 389, 393 (7th Cir. 1998). Direct evidence usually

requires an admission by the decisionmaker that his actions were based on age. See Troupe v. May Dep’t Stores Co.,

20 F.3d 734, 736 (7th Cir. 1994). Plaintiffs have not presented any direct evidence of discrimination.

Where circumstantial evidence of discriminatory intent

is relied on, generally the burden-shifting method of proof

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), is applied. Reeves, 530 U.S. at 142 (noting that

McDonnell Douglas framework applies in ADEA cases
18 No. 01-1166

when parties do not dispute it). The plaintiff must first

establish a prima facie case of discrimination, then the

defendant may state one or more legitimate, nondiscriminatory reasons for its actions, after which the plaintiff has

an opportunity to show that the defendant’s reasons are

pretextual. See Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248, 252-53 (1981).

To establish a prima facie case, a plaintiff must demonstrate that he was in the protected age group (40 years

of age and older, pursuant to 29 U.S.C. § 631(a)), was

performing his job satisfactorily, suffered an adverse employment action, and was replaced by a similarly situated

individual outside the protected class. McDonnell Douglas,

411 U.S. at 802; O’Connor v. Consol. Coin Caterers Corp.,

517 U.S. 308, 310 (1996); Gordon, 246 F.3d at 885-86

(applying McDonnell Douglas test to race and age claims).

However, in the case of a RIF, the fourth factor is altered

slightly because “the employer decides whom from a defined group it will ‘re-hire’ or retain, considering all existing employees as roughly like applicants for retention.”

Adams, 231 F.3d at 422; see also Thorn v. Sundstrand

Aerospace Corp., 207 F.3d 383, 386 (7th Cir. 2000) (holding

the McDonnell Douglas test is appropriate in RIF cases).

The employer must then produce evidence that “having

decided in good faith that he should reduce the size of

his workforce, [the employer] included the plaintiff within the class of workers to be laid off for reasons unrelated

to any discriminatory considerations.” Thorn, 207 F.3d at

386. An ADEA plaintiff who shows that someone “substantially younger” was retained instead of the plaintiff need

not prove that the replacement is outside the protected

class. See O’Connor, 517 U.S. at 312. In the age discrimination context, the fact that a plaintiff is replaced by

someone “substantially younger” is a reliable indicator of

age discrimination. Id. at 313; see Michas v. Health Cost

Controls of Ill., Inc., 209 F.3d 687, 693 (7th Cir. 2000). The
No. 01-1166 19

Seventh Circuit has defined “substantially younger” as

generally ten years younger. See Hartley v. Wisconsin Bell,

Inc., 124 F.3d 887, 893 (7th Cir. 1997).

a. Balderston

1. Prima facie case

There is no dispute that Balderston belongs to a protected class or that he suffered an adverse employment

action. And, viewed in a light favorable to Balderston, it

could be inferred that he was performing his job satisfactorily. Therefore, we need examine only whether similarly

situated employees outside the protected class were treated

more favorably. Gordon, 246 F.3d at 886.

The plaintiff must show that he is similarly situated with

respect to performance, qualifications, and conduct, and

that “the retained or transferred younger employees

possessed analogous attributes, experience, education,

and qualifications relevant to the positions sought, and

that the younger employees obtained the desired positions

around the same time as the [RIF].” Radue, 219 F.3d at

617-18 (citations omitted).

Balderston contends that Hall and Cockerham were

substantially younger and that Martin promoted Cockerham with the intent to terminate Balderston because of

Balderston’s age. Cockerham was 44 at the time and

Balderston was 59. Balderston presented no evidence

that he and Cockerham were similarly situated with respect to their qualifications, experience, skills, or abilities.

See Radue, 219 F.3d at 618. Balderston’s claim that Cockerham was unqualified for the position was based only on

Balderston’s own affidavit. There was no showing that

Balderston had any personal knowledge of Cockerham’s

qualifications nor was there any evidence presented that

Cockerham suffered from the same complaints, such as
20 No. 01-1166

tardiness and personnel difficulties, that Martin had found

with Balderston, therefore, making Balderston materially different than Cockerham. See id. at 618-19.

Balderston stated that Hall was similarly situated

and received more favorable treatment. Hall was not a

similarly situated employee as his salary was already

substantially lower than Balderston’s, nor was he in the

“general manager” classification as Balderston was. Hall

also had far more extensive experience with Latin American sales than Balderston.

Balderston also claims that Mowry, age 42, was similarly situated and received more favorable treatment in

that Mowry replaced Balderston when Balderston was

terminated. Mowry did not replace Balderston. Balderston’s

duties were divided between Cockerham and six new

directors. Mowry was given the supervision of the Norfolk

and Seattle service centers and warranty management.

Although it is true Mowry was a much younger employee

whom Balderston had previously supervised, Balderston

has offered no evidence as to Mowry’s qualifications,

education, experience, skills, or abilities. See Radue, 219

F.3d at 618. Nor did Balderston show that Martin and

Cockerham had a negative opinion of Mowry, as they did

of Balderston, making Mowry materially different than

Balderston. See id. at 619.

2. Pretext

Although we need not proceed further due to the fact

that Balderston has failed to satisfy the fourth prong of

his prima facie case, because the district court assumed,

for purposes of summary judgment, that Balderston could

demonstrate he was similarly situated to Mowry, we

briefly address the issues of Fairbanks’ “legitimate, nondiscriminatory reasons” for its actions and Balderston’s abil-
No. 01-1166 21

ity to show that Fairbanks’ reasons were pretextual. See

Burdine, 450 U.S. at 252-53.

Cockerham has stated that he chose not to retain

Balderston due to Cockerham’s negative opinion of him as

a result of Balderston’s obtaining only a minimal contract with the MSC, the loss of the bid to repair the MV

Nestos, the Amocar project involving the EnviroDesign®

engine, the travel expenses for Balderston’s trip to Russia, the perceived failure to meet budget predictions, and

Cockerham’s belief that Balderston had not held a working-level manager position for several years. Because

Cockerham failed to state in his deposition that his opinion of Balderston was also influenced by Balderston’s

failure to secure a release of claims for a settlement

agreement, what Cockerham viewed as problems at the

two-day MSC meeting, and service installation cost overruns, given the fact that we must view the evidence in the

light most favorable to the plaintiff, those three proffered

reasons are not considered.

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 reason was

not good enough to support its decision. See Reeves, 530

U.S. at 147. Plaintiffs must provide “evidence tending

to prove that the employer’s reasons are factually baseless, were not the actual motivation for the discharge in

question, or were insufficient to motivate the discharge,”

Testerman v. EDS Technical Prods. Corp., 98 F.2d 297, 303

(7th Cir. 1996) (citation omitted), and that plaintiff would

not have been let go but for his age. See Burdine, 450 U.S.

at 256; EEOC v. G-K-G, Inc., 39 F.3d 740, 746 (7th Cir.

1994). In this instance, what must be provided is “proof

of intentional discrimination based on an examination of

all the evidence in the record viewed in the light favorable

to the nonmoving party.” EEOC v. Bd. of Regents of the

Univ. of Wis. Sys., 288 F.3d 296, 302 (7th Cir. 2002). “Where
22 No. 01-1166

an employer offers multiple independently sufficient justifications for an adverse employment action, the plaintiffemployee must cast doubt on each of them.” Lesch v. Crown

& Cork Seal Co., 282 F.3d 467, 473 (7th Cir. 2002) (citation

omitted). The only concern in reviewing an employer’s

reasons for termination is the honesty of the employer’s

beliefs. Id. at 474.

Balderston has failed to provide evidence showing

that Cockerham did not honestly believe in the reasons

he stated which led him to believe Balderston’s performance was not satisfactory, therefore dismissing Balderston

when his position was eliminated as part of a reorganization and RIF of the company. Balderston’s own belief that

he was the best candidate is irrelevant to the question of

pretext. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446,

1460 (7th Cir. 1994) (finding that employee’s self-interested

assessment of her own job abilities is insufficient to raise

an issue of fact).

Cockerham’s reasons may have been “foolish or trivial

or even baseless.” Hartley, 124 F.3d at 890 (citation omitted); Koski v. Standex Int’l Corp., 307 F.3d 672, 678 (7th Cir.

2002) (“employers may terminate competent employees

older or otherwise because they do not like them”). However, there has been no showing, other than Balderston’s

own statements, that Cockerham did not honestly believe

his assessment of Balderston. See Uhl v. Zalk Josephs

Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir. 1997)

(“Facts, not an employee’s perception and feelings, are required to support a discrimination claim.”).

The reasons for Balderston’s termination are not scrutinized as to whether they were right or wrong, but only

“whether the reason for which the [employer] discharged

the [employee] was discriminatory.” Giannopoulos v. Brach

& Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997).

Balderston’s statement that he secured a $6,000 contract
No. 01-1166 23

with the MSC does not refute Cockerham’s belief that

Balderston should have secured a more valuable contract.

Nor does Balderston’s statement that he did not personally perform the audit on the Amocar project refute

Cockerham’s opinion that Balderston held the ultimate

responsibility as project supervisor. “[A] reason honestly

described but poorly founded is not a pretext as that term

is used in the law of discrimination.” Kariotis v. Navistar

Int’l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (citation omitted). Even if it may be true in the present case

that Cockerham did not check on the validity of all of his

facts and had a mistaken belief, as with the erroneous

budget figures, there has been no showing the dismissal

was based on illegal discrimination. See id. at 677-78.

Although Balderston might wish us to review Fairbanks’

decision on the merits, “this court does not sit as a superpersonnel department that reexamines an entity’s business

decisions.” Dale v. Chicago Tribune Co., 797 F.2d 458, 464

(7th Cir. 1986); accord Debs v. Northeastern Ill. Univ., 153

F.3d 390, 396 (7th Cir. 1998). There has been no evidence

to show that Cockerham did not honestly believe he was

dismissing a poorer performing, less suitable candidate

and Fairbanks is therefore not liable for intentional discrimination.

We also find that Martin’s comment at the 1996 executive meeting was not sufficient evidence, particularly

standing alone as the only statement regarding age as a

determining factor, to allow a finding of pretext. A statement of discriminatory animus must be made by a decisionmaker and relate to the action at issue. Sanghvi v.

St. Catherine’s Hosp., Inc., 258 F.3d 570, 574 (7th Cir. 2001)

(citation omitted); Hunt v. City of Markham, 219 F.3d 649,

652 (7th Cir. 2000) (holding that discriminatory comment

must be made by a decisionmaker “(1) around the time of,

and (2) in reference to, the adverse employment action

complained of”). In the face of all of defendant’s evidence
24 No. 01-1166

as to legitimate reasons for dismissing Balderston, Martin’s statement, made several years prior to the RIF, as the

only indication of age discrimination, is insufficient to

conclude that Fairbanks’ reasons were pretextual.

b. Gabriel

Gabriel maintains that he was discriminated against

in favor of Ericson, Desing, and Stull. Although there is

no dispute that Gabriel meets the first three elements of

his prima facie case, he fails to meet the fourth prong

with regards to Desing and Stull in showing he was replaced by a similarly situated individual outside the

protected class. McDonnell Douglas, 411 U.S. at 802.

Gabriel stated that Desing, age 44, and Stull, age 38,

were treated more favorably when, as part of the reorganization, they were transferred to the positions of service

specialists as part of the technical services group under the

marketing department, whereas Gabriel was discharged.

The service specialists were to provide technical service

information about commercial engines and parts and service for all product lines to both Fairbanks’ employees and

Fairbanks’ customers. Desing and Stull were selected because of their extensive knowledge of the EnviroDesign®

engine and its installation and commercial applications, in

addition to their ability to supervise and troubleshoot

installation of the engine. Gabriel, whose primary focus

had been MSC’s government account, has not shown that

he had experience with the EnviroDesign® engine or

more experience with its commercial applications. Therefore, Gabriel was not similarly situated to Desing and Stull.

Viewing the evidence in a light most favorable to Gabriel,

the district court found that there was sufficient evidence

to meet the fourth prong of Gabriel’s prima facie case

with regard to Ericson. Although we believe the evidence

shows that Gabriel and Ericson were not similarly sit-
No. 01-1166 25

uated, we agree with the district court’s finding that

Gabriel failed to show that Connolly’s proffered reasons

for choosing Ericson were pretextual. See Burdine, 450 U.S.

at 252-53. Connolly stated that the primary factor in her

decision was based on Ericson’s experience with one of

Fairbanks’ largest and most difficult accounts, Avondale.

Connolly knew that Avondale was a complex and demanding client and that Ericson, during his many years of

working with Avondale, had continually pleased Avondale’s

management and personnel. On the other hand, Connolly

was aware that an Avondale representative had complained

about Gabriel’s “rude and uncooperative” attitude. Connolly

focused on Ericson’s extensive and positive working relationship with Avondale. Even Balderston’s evaluations

support Ericson’s skill in working with Avondale. Gabriel

has produced no factual evidence that Connolly’s decision

to appoint Ericson instead of Gabriel was intentional age

discrimination. See Uhl, 121 F.3d at 1137.

Gabriel also maintained that although he was qualified,

he was not considered for the position of a program administrator in the government programs department. The

position was offered to Tom Hennis, age 48. The six-year

age difference does not rise to the level of a “substantially

younger,” similarly situated person, as required by the

Seventh Circuit in cases where the replacement is not

shown to be outside the protected class. See Hartley, 124

F.3d at 893.

Summary judgment was properly granted on both

Balderston’s and Gabriel’s claims of age discrimination.

III. CONCLUSION

For the above-stated reasons, we AFFIRM the judgment of

the district court.
26 No. 01-1166

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-17-03