In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-2879

TERRY E. GRIMM, ROGER H. CURRY,

EDGAR F. GREATHOUSE, ET AL.,

Plaintiffs-Appellants,

v.

ALRO STEEL CORPORATION,

Defendant-Appellee.

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Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 02 C 585—Robert L. Miller, Jr., Chief Judge.

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ARGUED MAY 2, 2005—DECIDED JUNE 7, 2005

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Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Alro Steel Corporation distributes

steel, specialty metals, industrial supplies, and plastics.

This case arises out of the company’s decision to close its

plant in South Bend, Indiana, in 2001, terminating the jobs

of 26 warehousemen who worked there. Twelve of those
2 No. 04-2879

1 Thirteen workers initially filed suit, but one dropped his case.

The remaining plaintiffs are: Terry Grimm, Roger Curry, Edgar

Greathouse, William Bauer, Randy Clemens, William Howell,

Charles Moore, David Pietrzak, Terry Stephenson, James Teske,

Kenneth Wharton, and Andrew Zurawski.

workers claim the decision to let them go was motivated, at

least in part, by their age.1

The closing of the South Bend plant came about as part

of a larger company restructuring. In 1999, Alro bought

land to build a new facility in Niles, Michigan. Although it

originally intended the Niles plant to provide additional

capacity for the South Bend plant and a facility in Benton

Harbor, Michigan, declining sales led Alro to close both of

the existing plants. All 16 of the Benton Harbor warehouse

employees, who were members of Teamsters Union Local 7,

were given the opportunity to transfer to the Niles plant,

where they would continue to be represented by Teamsters

Local 7.

In early July 2001, Alro notified the plaintiffs, who were

members of Teamsters Union Local 364, and other South

Bend warehouse workers of its intent to close that plant

and terminate their employment, which it did on July 27.

The situation moved the plaintiffs to file age discrimination

charges with the Equal Employment Opportunity Commission. Eventually, they filed this suit, claiming that Alro

violated the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621 et seq. The district court granted

summary judgment in Alro’s favor, and the plaintiffs

appeal.

We review the district court’s grant of summary judgment

de novo, viewing all facts and drawing all reasonable inferences in the plaintiffs’ favor. Bellaver v. Quanex Corp., 200

F.3d 485, 491-92 (7th Cir. 2000). Summary judgment is

appropriate if there is no genuine issue as to any material
No. 04-2879 3

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986).

A plaintiff can prove discrimination under the ADEA by

presenting direct or circumstantial evidence that an employer

took an adverse job action against him because of his age.

An employee can also use the indirect burden-shifting

approach set out in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-03 (1973), proving discrimination “by constructing a ‘convincing mosaic’ of circumstantial evidence

that ‘allows a jury to infer intentional discrimination by the

decisionmaker.’ ” Cerutti v. BASF Corp., 349 F.3d 1055,

1060-61 (7th Cir. 2003) (quoting Troupe v. May Dep’t Stores

Co., 20 F.3d 734, 736 (7th Cir. 1994)).

The plaintiffs initially claimed to have sufficient evidence to

support their claims under both methods. They first pointed

to an admission by Dave Zontek, vice-president of human

resources at Alro, that he asked about the seniority of three

South Bend workers being considered for transfers to the

Niles plant. The district court found that this inquiry was

not sufficient evidence of age discrimination.

On appeal, the plaintiffs focus almost solely on the

McDonnell Douglas analysis, which, as we have said many

times, requires employees claiming a violation of the ADEA to

show that: (1) they are members of a protected class; (2)

they were meeting the employer’s legitimate expectations;

(3) they were discharged and not rehired or promoted as a

result of the employer’s reorganization; and (4) the employer treated younger, similarly situated employees more

favorably. Cerutti, 349 F.3d at 1061. If the employee can

meet that burden and establish a prima facie case, the

burden shifts to the employer to produce a legitimate,

nondiscriminatory reason for its adverse employment

decision. That shifts the burden back to the employee to
4 No. 04-2879

present evidence sufficient to enable a fact finder to find

that the employer’s explanation is pretextual. Id.

While acknowledging that the plaintiffs here are members

of a protected class and were discharged and not rehired,

the district court found that the plaintiffs failed to establish

a prima facie case because they did not show that they were

meeting Alro’s legitimate expectations or that Alro treated

younger, similarly situated employees more favorably.

On the legitimate expectations issue, the district court

highlighted the statistical evidence showing that the South

Bend plant was one of Alro’s least productive operations.

The plaintiffs argue that they had few recorded disciplinary

problems and that summaries of a plant’s performance do

not necessarily speak to the performance of the individual

plaintiffs. They also cite the testimony of Brian Hoggatt, a

shift supervisor at the plant, who said that all of the

plaintiffs were competent.

We agree with the district court’s conclusion that the

plaintiffs’ evidence was weak. At this stage, however, the

evidence does not have to be very strong to be sufficient,

and Alro’s contention that the plaintiffs were not meeting

legitimate expectations is undermined by the fact that the

company took little action to address the plant’s lack of

productivity for several years before closing it.

Ultimately, though, we need not determine whether the

plaintiffs adequately demonstrated that they were meeting

Alro’s legitimate expectations because the district court correctly concluded that they did not show that Alro treated

younger, similarly situated employees more favorably. The

district court acknowledged that the duties performed by

the new employees at the Niles plant were almost identical

to those performed by the plaintiffs, as we have required.

See Michas v. Health Cost Controls of Ill., Inc., 209 F.3d

687, 693 (7th Cir. 2000). But the district court also noted

that, while the plaintiffs could show that, as a group, the
No. 04-2879 5

warehousemen hired to replace them were younger, none of

the individual plaintiffs provided sufficient evidence to

show that he personally was replaced by a substantially

younger worker.

The plaintiffs argue that forcing each worker to figure out

who replaced him is not always possible and, as a result,

such a standard would allow employers to get around

discrimination laws by firing and replacing employees in

groups instead of one at a time. While the plaintiffs’ argument might be persuasive in a different situation, it is not

altogether relevant here. That’s because, as the district

court noted, the relevant similarly situated workers are not

the workers’ replacements but the five warehousemen at

the South Bend plant who were under 40. None of those five

(four of whom were under age 25) were invited to remain

with Alro after the closing of the South Bend plant. In other

words, the young workers were treated exactly like the

older workers—all were let go.

Although McDonnell-Douglas provides an appropriate

framework, the ultimate question in an ADEA case like this

is whether Alro would have treated the plaintiffs any

differently if they were younger. See Cerutti, 349 F.3d at

1061. On that larger question, the evidence overwhelmingly

suggests that it would not have. Once Alro decided on its

reorganization plan, it had to decide where to get the

warehouse workers for the Niles plant. Alro decided to offer

transfers to the Benton Harbor warehouse workers, nine of

whom were over the age of 40, and to hire new workers,

seven of whom were older than 40. And there is no evidence

to contradict Alro’s claim that its decision to transfer and

hire those workers, and not the South Bend workers, was

made in large part because of Alro’s relationship with the

unions representing the workers at the Benton Harbor and
6 No. 04-2879

2 Although the decisions made in the course of the restructuring

arguably had a disproportionate effect on the older warehouse

workers, the plaintiffs admitted at oral argument that they had

little evidence to support a disparate impact claim.

USCA-02-C-0072—6-7-05

South Bend plants.2 Whatever the propriety of basing its

decisions on the workers’ representation, no reasonable jury

could find that age of the plaintiffs was a motiving factor in

Alro’s choices. Accordingly, the judgment of the district

court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit