In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1003

William Radue,

Plaintiff-Appellant,

v.

Kimberly-Clark Corporation,

Defendant-Appellee.

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 98 C 879--Barbara B. Crabb, Judge.

Argued June 1, 2000--Decided July 10, 2000

 Before Bauer, Easterbrook, and Manion, Circuit Judges.

 Manion, Circuit Judge. When Kimberly-Clark

informed William Radue that he would be laid off

from his mechanical engineer position as part of

a reduction in force, it also mentioned that he

could seek other positions with the company.

Radue never secured another job, so he sued under

the ADEA, maintaining that younger employees were

given positions for which he was qualified.

Because Radue failed to show discrimination under

the direct method, and was unable to establish a

prima facie case of age discrimination, the

district court granted summary judgment for

Kimberly-Clark. We affirm.

I.

 William Radue is a mechanical engineer who

worked for Kimberly-Clark between June 30, 1975

and April 1, 1996. Since 1995, Radue was a senior

project engineer assigned to a paper machine

project at the Whiting Mill in Whiting,

Wisconsin. When the project was nearing

completion, Kimberly-Clark informed Radue that it

had no further projects requiring his mechanical

engineering skills and that his position would

therefore be eliminated. Radue was fifty-three

years old at this time, and was only two years

away from eligibility for severance benefits. He

asked whether another slot might be found for him

so that he could complete the requisite two
years, and he expressed a willingness to take any

available position. Kimberly-Clark officials

informed him that he should seek other jobs in

the company by contacting people he knew and by

using the resources of the company’s Engineering

Career Development Team. The ECDT sought to match

engineer employees with suitable positions

throughout the company. It did this by

maintaining a database of all engineering

personnel and vacant engineering positions. Each

sector of the company had a representative on the

ECDT, and Radue’s representative was Jim Parent.

Although Parent located a position for an

electrical engineer who was subject to the RIF,

he was unsuccessful in finding one for Radue.

Other engineers transferred to positions

throughout the company, but Radue never obtained

another job with Kimberly-Clark, either through

his informal inquiries or through the ECDT. 

 Claiming that he was the victim of age

discrimination, Radue sued the company under the

Age Discrimination in Employment Act, which

prohibits intentional discrimination against

persons over the age of forty. See 29 U.S.C. sec.

623(a)(1). Radue did not allege that the

reduction in force was motivated by his age.

Rather, his complaint centered on the company’s

failure to assist him to the same extent it

assisted other employees in finding other

vacancies, and the company’s failure to transfer

him to other positions. The district court

granted summary judgment for Kimberly-Clark

because Radue could not show discrimination under

either the direct or indirect method. He

presented no direct evidence of discrimination.

With respect to the indirect method, while he

presented evidence that one substantially younger

employee might have been treated better than he

was, and that some similarly situated employees

might have received preferential treatment, he

failed to show that any employee who was both

similarly situated and substantially younger

received superior treatment with respect to an

intra-company transfer. Radue appeals from the

summary judgment, arguing that he has created a

genuine issue for trial under either the direct

or indirect method.

II.

 Radue concedes, as he must, that the ADEA does

not require his employer to terminate younger

employees in order to open positions for older

workers. See Walther v. Lone Star Gas Co., 952

F.2d 119, 123 (5th Cir. 1992). Radue also

recognizes that when an employer reduces its

workforce it has no duty to transfer senior

employees to available positions. Taylor v.

Canteen Corp., 69 F.3d 773, 780 (7th Cir. 1995).

But when internal job placement services are
benefits of employment which are provided to

younger employees, an employer must provide

roughly the same benefits to ADEA-protected

employees, and when an employer responds to a RIF

by transferring employees to available positions,

it may not refuse to transfer older employees

based on their age. Kusak v. Ameritech Info.

Sys., Inc., 80 F.3d 199, 201 (7th Cir. 1996);

Taylor, 69 F.3d at 780. We assume, because the

parties do, that use of the ECDT system was a

benefit that Kimberly-Clark provided to all

employees, and that Radue was therefore entitled

to receive equal treatment in the internal job

search. There’s no indication that in

communicating to supervisors the names of

engineers available for transfer Kimberly-Clark

did not treat Radue the same as it did younger

employees, which precludes Radue’s "job hunting"

claim. Furthermore, a claim that an employer

refused to provide equal assistance in finding a

transfer for a protected employee requires a

showing that there was an available position for

which the plaintiff was qualified. See Sauzek v.

Exxon Coal USA, Inc., 202 F.3d 913, 919 (7th Cir.

2000) (employee must have been qualified for and

applied for specific jobs that were available

during the RIF); Taylor, 69 F.3d at 779, 780. As

will be seen in addressing Radue’s failure to

transfer claim--which has the same requirement--

he made no such showing. So we confine our

analysis to Kimberly-Clark’s failure to transfer

Radue. To withstand summary judgment on this

claim, Radue must present sufficient evidence

from which a jury could find that his employer

acted with a discriminatory intent in failing to

consider him for positions commensurate with his

skills. Blackwell v. Cole Taylor Bank, 152 F.3d

666, 672 (7th Cir. 1998). He may do this using

either the direct or the indirect method of

proof. Sheehan v. Daily Racing Form, Inc., 104

F.3d 940, 940 (7th Cir. 1997).

A. The Direct Method

 Radue first argues that summary judgment was

improper because he has sufficient direct

evidence of discriminatory intent to create a

genuine issue for trial. 

 A plaintiff can avert summary judgment for the

defendant in an employment discrimination case by

presenting enough evidence, whether direct or

circumstantial, of discriminatory motivation to

create a genuine issue for trial. Sheehan, 104

F.3d at 940. In pleading discrimination cases,

litigants, usually as an alternative argument,

will often contend that they have unearthed

direct evidence of discriminatory intent, but

such direct evidence--"eyewitness testimony as to

the employer’s mental processes"--is rarely
found. Reeves v. Sanderson Plumbing Products,

Inc., 120 S. Ct. 2097 (2000). Direct evidence

essentially requires an admission by the

decision-maker that his actions were based on the

prohibited animus. Troupe v. May Dep’t Stores,

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

v. Elmwood Care, Inc., 128 F.3d 1177, 1178 (7th

Cir. 1997); Sheehan, 104 F.3d at 941. Radue has

nothing that looks even slightly like an

admission, which is not surprising, since most

employers are careful not to openly discriminate

and certainly not to publicly admit it. Therefore

most plaintiffs, including Radue, must rely on

circumstantial evidence of discriminatory intent.

 Radue’s circumstantial case under the direct

method is primarily composed of statistics which

show that older employees were treated less

favorably than younger employees in various RIFs

conducted by Kimberly-Clark. For example, Radue’s

numbers show that in November 1995, when

Kimberly-Clark was performing a RIF in another

sector of the company, the mean age of the 140

engineers and consultants selected to be retained

was 37.51, while the mean age of the 16 engineers

receiving pink slips was 50.75. This, he

concludes without any further analysis,

demonstrates that his own plight was caused by

invidious discrimination. But these statistics

hardly compel this conclusion. For starters, they

are based on a completely different part of the

company (the family care sector) than that in

which Radue worked (the Neenah paper sector). The

numbers also include more than just engineers.

And Radue’s contention with respect to these

statistics--that the November 1995 RIF was

engendered by age bias--differs from the argument

made in his own case: his RIF was not age-based,

but transfers awarded afterward were. A more

basic problem is that statistics can only show a

relationship between an employer’s decisions and

the affected employees’ traits; they do not show

causation. Munoz v. Orr, 200 F.3d 291, 301 (5th

Cir. 2000) (citing Tagatz v. Marquette Univ., 861

F.2d 1040, 1044 (7th Cir. 1988)). Because the

occurrence of adverse employment actions may

correlate to older employees for reasons other

than intentional discrimination, causation is

suggested only when the other variables are shown

to be insignificant. Furr v. Seagate Tech., Inc.,

82 F.3d 980, 987 (10th Cir. 1996). "Statistical

evidence which fails to properly take into

account nondiscriminatory explanations does not

permit an inference" of discrimination. Id. A

plaintiff must show "disparate treatment between

comparable individuals." Id.

 Tagatz succinctly illustrates this principle. In

that case, the plaintiff showed that younger

university professors received larger annual
raises than older professors. While

discrimination was one plausible explanation for

the disparity, the court acknowledged that an

equally plausible, nondiscriminatory explanation

was suggested by the fact that "academics’

salaries tend to rise rapidly in the early stages

of their career and to reach a plateau when the

academic becomes a full professor . . . ." 861

F.2d at 1045. Because the plaintiff failed to

explain why his statistical evidence did not

equally support this alternative theory, it was

not particularly probative of discriminatory

intent. Similarly, in Barnes v. Southwest Forest

Industries, Incorporated, the employer discharged

fourteen security guards in a RIF, thirteen of

whom were over the age of forty, and hired eleven

younger employees just before the RIF, without

giving the older employees a chance to compete

for the jobs. 814 F.2d 607, 608, 610 (11th Cir.

1987). The Eleventh Circuit held that these

statistics failed to support a prima facie case

of "failure to retain or rehire" discrimination

where the plaintiff offered no other

circumstantial evidence suggesting a

discriminatory motive. As in the present case,

there were alternative explanations for the

numbers, which the plaintiff failed to take into

account. "Standing virtually alone, as they are

in this case, statistics cannot establish a case

of individual disparate treatment." Gilty v.

Village of Oak Park, 919 F.2d 1247, 1253 n.8 (7th

Cir. 1990). Yet Radue has failed to suggest why

obvious, alternative explanations were likely not

the actual reasons for the layoffs. See Furr, 82

F.3d at 987 (the plaintiff’s statistical evidence

is flawed when it fails to take into account

nondiscriminatory reasons for disparities).

Because Radue has neglected his burden of showing

that the statistical evidence strongly suggests

that his inability to find another position was a

result of intentional discrimination, he has not

established a case under the direct method.

B. The Indirect Method

 Radue also contends that he can show intentional

discrimination using the McDonnell Douglas

burden-shifting method.

 Plaintiffs utilizing the McDonnell Douglas

burden-shifting formula for showing

discriminatory intent must first establish a

prima facie case of discrimination. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);

Sheehan, 104 F.3d at 940. To do so in an ADEARIF-failure to transfer case, a plaintiff must

present evidence that: (1) he is a member of a

protected class; (2) he reasonably performed his

job to his employer’s expectations; (3) he was

subject to an adverse employment action; and (4)
other similarly situated employees who were

substantially younger than him were treated more

favorably. Michas v. Health Cost Controls of

Ill., Inc., 209 F.3d 687, 693 (7th Cir. 2000);

Taylor, 69 F.3d at 779. Kimberly-Clark does not

dispute the first three elements, so the only

question is whether Radue established the last

element.

 1. Similarly situated.

 In determining whether two employees are

similarly situated a court must look at all

relevant factors, the number of which depends on

the context of the case. Spath v. Hayes Wheels

Int’l-In., Inc., 211 F.3d 392, 397 (7th Cir.

2000). For example, in disciplinary cases--in

which a plaintiff claims that he was disciplined

by his employer more harshly than a similarly

situated employee based on some prohibited

reason--a plaintiff must show that he is

similarly situated with respect to performance,

qualifications, and conduct. Byrd v. Ronayne, 61

F.3d 1026, 1032 (1st Cir. 1995). This normally

entails a showing that the two employees dealt

with the same supervisor, were subject to the

same standards, and had engaged in similar

conduct without such differentiating or

mitigating circumstances as would distinguish

their conduct or the employer’s treatment of

them. Mitchell v. Toledo Hosp., 964 F.2d 577, 583

(6th Cir. 1992). In a failure to transfer case

some of these factors--like the severity of the

infractions--are not relevant, although the same

general comparisons must be made. As to the

relevant factors, an employee need not show

complete identity in comparing himself to the

better treated employee, but he must show

substantial similarity. Ercegovich v. Goodyear

Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.

1998). Without making an exhaustive list, we note

that in previous RIF cases plaintiffs were

required to show at a minimum 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. Biolchini v. General Elec. Co., 167 F.3d

1151, 1154 (7th Cir. 1999); Fisher v. Wayne

Dalton Corp., 139 F.3d 1137, 1141 (7th Cir.

1998); Taylor, 69 F.3d at 782; Holmberg v. Baxter

Healthcare Corp., 901 F.2d 1387, 1392 (7th Cir.

1990). 

 Radue bases his prima facie case primarily on

comparing himself to three employees: Ray

Nankervis, Mark Proctor, and Renatta Williams.

First, as to Proctor, Radue contends that
Kimberly-Clark provided him with an electrical

engineering position. But Radue can’t show a

meaningful similarity to Proctor because Proctor

is an electrical engineer, while Radue is not.

The fact that Proctor was qualified for the

position he obtained, while Radue isn’t, means

that there is insufficient similarity to infer

discrimination. See Sauzek, 202 F.3d at 919. As

far as Nankervis, Radue doesn’t indicate that he

was subject to a RIF, which means that Nankervis

and Radue were not in materially parallel

positions. The same holds true for Williams, who

accepted a purchasing agent position, but

apparently not as a result of a RIF, and

therefore is not a candidate for comparison.

Spath, 211 F.3d at 397 (plaintiff must show that

the ’comparables’ are similarly situated in all

relevant respects). 

 A demonstration of substantial similarity would

also require a showing that a common supervisor

offered one of these other employees a position

for which Radue was qualified, and that this same

supervisor also knew about Radue’s availability

but refused to offer the job to him. Radue hasn’t

shown a common supervisor, and in fact doesn’t

even mention who offered Williams and Nankervis

their positions. This omission alone probably

precludes a showing of similarity because when

"’different decision-makers are involved, two

decisions are rarely similarly situated in all

relevant respects.’" Stanback v. Best Diversified

Products, Inc., 180 F.3d 903, 910 (8th Cir. 1999)

(quoting Harvey v. Anheuser-Busch, Inc., 38 F.3d

968, 972 (8th Cir. 1994)); see Hollins v.

Atlantic Co., Inc., 188 F.3d 652, 659 (6th Cir.

1999). Different employment decisions, concerning

different employees, made by different

supervisors, are seldom sufficiently comparable

to establish a prima facie case of discrimination

for the simple reason that different supervisors

may exercise their discretion differently. Cf.

Weisbrot v. Medical College of Wisconsin, 79 F.3d

677, 683 (7th Cir. 1996); Timms v. Frank, 953

F.2d 281, 287 (7th Cir. 1992). These distinctions

sufficiently account for any disparity in

treatment, thereby preventing an inference of

discrimination.

 Even if Radue demonstrated some likeness to

Nankervis, Proctor, and Williams in these

respects, he was substantially dissimilar to them

in two material ways: he had previous job

performance problems and he communicated to

superiors that he hoped he could bide his time

with the company for two more years in order to

qualify for a good severance package. With

respect to his performance, Radue was perceived

as having a drinking problem, had episodes of

non-attendance, and was thought to procrastinate

on projects. Nankervis, Williams, and Proctor
were not previously cited for substantial

performance problems and never manifested an

intent to make a quick departure, which makes

them materially different from Radue. See Smith

v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st

Cir. 1994) (substantial similarity requires a

showing that the ostensibly similar employees

conducted themselves in a corresponding fashion).

Because these distinctions were substantial

enough to account for the different treatment

Radue claims he received, Radue has failed to

show that he was sufficiently similar to either

Proctor, Nankervis, or Williams to establish a

prima facie case.

 Radue also points to about thirteen mechanical

engineers and six process engineers who were

hired, transferred, or promoted to other

positions around the time of the RIF. But that’s

about all he does with this information, and so

his halfhearted attempt to show similarity

suffers from the problems we just discussed. The

defect underlying Radue’s approach stems from the

frequency of transfers, promotions, and hirings

at Kimberly-Clark, which means that these events

are not in themselves indicative of

discrimination. As we have already emphasized, a

showing of discrimination requires more--much

more than simply identifying employees who

obtained jobs around the same time that the

plaintiff was looking for a position. A valid

comparison would have entailed showing that the

these employees also encountered a RIF, that they

obtained positions for which Radue was qualified,

and that the supervisors in charge also knew that

Radue was looking for such positions. Without

this, there’s no basis for inferring that the

other employees were similarly situated. The

similarly situated requirement is very important,

for without it a plaintiff would only have to

point to one younger employee who was treated

better than he. Wallace v. SMC Pneumatics, Inc.,

103 F.3d 1394, 1398 (7th Cir. 1997). Such a

minimal showing would be meaningless, especially

with respect to large corporations like KimberlyClark. The record in this case does not indicate

that Radue and these nineteen employees shared

common features essential to a meaningful

comparison, thus they cannot be used to establish

the fourth element of a prima facie case of

discrimination.

 2. Substantially younger.

 Finally, we also note that Radue was required to

show that any similarly situated employees were

substantially younger, which Radue cannot do as

to Nankervis and Proctor. Nankervis was forty-six

years old at the time of the RIF, which is
problematic for Radue because to satisfy the

"substantially younger" requirement, the relevant

individual must be at least ten years younger

than the plaintiff. Hartley v. Wisconsin Bell,

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

being only seven years difference between the

two, Nankervis is not substantially younger.

Proctor won’t work either, as he is 9.5 years

younger than Radue. But 9.5 is pretty close to

10, and where a plaintiff just misses the 10-year

mark, he can still present a triable claim if he

directs the court to evidence that his employer

considered age to be a significant factor.

Fisher, 139 F.3d at 1141. But all Radue has are

his statistics, the shortcomings of which we

discussed above. Therefore, Radue could not use

Proctor to make out a prima facie case either.

Although Renatta Williams and the nineteen

engineers Radue mentioned are substantially

younger than Radue, as we discussed above, Radue

didn’t show that they were similarly situated.

III.

 Radue presented no direct evidence of

discrimination and his statistical evidence

failed to create a legitimate jury question. As

to the indirect method, Radue failed to establish

a prima facie case because he could not show that

even a single substantially younger, similarly

situated employee was treated more favorably.

Accordingly, the district court properly granted

summary judgment for Kimberly-Clark, and its

decision is in all respects

AFFIRMED.