In the

United States Court of Appeals

For the Seventh Circuit

No. 00-4239

Ronald Lesch,

Plaintiff-Appellant,

v.

Crown Cork & Seal Co.,

Defendant-Appellee.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 00 C 1715--Suzanne B. Conlon, Judge.

Argued May 15, 2001--Decided February 28, 2002

 Before Ripple, Manion, and Diane P. Wood,

Circuit Judges.

 Diane P. Wood, Circuit Judge. At the age

of 61, Ronald Lesch’s career as the

comptroller of Crown International

Management Systems (CIMS), a division of

Crown Cork & Seal Co. (Crown), came to an

abrupt end when Crown acquired a French

company and decided it no longer needed

CIMS to provide certain accounting

services it had previously used. Lesch

believed that age discrimination lay

behind the loss of his job, given that a

man 11 years his junior was selected to

head the new Corporate Technologies (CT)

accounting group, and given the fact that

the CT group took over some non-CIMS

accounting work Lesch had formerly

overseen. Following his forced early

retirement, Lesch filed a timely

complaint with the EEOC alleging that

Crown violated the Age Discrimination and

Employment Act (ADEA), 29 U.S.C. sec. 621

et seq., by dismissing him from his

position and replacing him with someone

younger. After receiving his right-to-sue

letter, Lesch filed a claim in federal

district court. The district court

granted summary judgment to Crown, which

we affirm.

I

 Lesch’s termination was undoubtedly
painful; by the time he left, he had

worked for CIMS for almost 40 years. As

of 1997, when he was 61, he was the

comptroller, or head accountant, for what

was then Crown’s division in charge of

international operations. Early that

year, Crown had decided to consolidate

its accounting operations for both CIMS

and CT under Lesch’s supervision. On the

recommendation of Judith White, one of

CT’s executive staff, Siegfried Genutis

was brought in to take primary

responsibility for CT’s accounting work.

Genutis had relatively little formal

experience in accounting methods, but he

had extensive expertise in computers and

the software used to compile and generate

reports from financial data. When Genutis

joined the CIMS accounting group, Lesch

assigned Douglas Pittman, a staff

accountant, to train Genutis in the

group’s accounting methods. Before long,

Genutis, while technically still under

Lesch’s supervision, was almost

exclusively working directly with White

on CT’s accounting projects.

 Around the same time, Crown acquired

Carnaud Metal Box, a French company that

specialized in many of the same overseas

product development and management

services that CIMS provided. Crown

decided to eliminate the duplication by

phasing out the CIMS division and

terminating all of its employees. CT, in

contrast, was not slated to lose any

positions as a result of the acquisition.

Instead, new arrangements had to be made

for meeting CT’s accounting needs. 

 White had the responsibility of

establishing a new, stand-alone CT

accounting group, drawing from the CIMS

accounting staff. She wanted the head of

the CT group to be a strong manager, but,

just as importantly, she wanted someone

with the necessary information technology

expertise to help advance the

computerization of accounting operations

at Crown. Based upon these criteria, and

the fact that she had found him to be a

highly competent accountant who

understood CT’s accounting needs, White

selected Genutis to head the CT group.

White also selected three junior level

accountants for the group, one of whom

was Douglas Pittman. At the time, Genutis

was 50 and Pittman was 53.

 When the unwelcome word reached Lesch in
early 1997 that his CIMS comptroller

position was slated for elimination, he

approached Fred Leh in Crown’s Human

Resources Department about finding an

alternative position. Lesch did not want

to retire before he turned 65 and

indicated to Leh his willingness to take

even a demotion in order to remain with

the company. At the time, Lesch was not

aware of White’s plans to use accountants

from the CIMS group to meet CT’s

accounting needs. As part of Leh’s search

for alternative positions, however, Leh

learned that White had chosen to retain

Genutis rather than Lesch to lead the

revamped CT group. It is unclear from the

record whether Leh discussed with White

the possibility of Lesch’s taking one of

the entry level accounting positions, but

White later wrote Leh an e-mail note in

which she explained that she had never

considered Lesch for the entry level

positions because of his status as a

senior manager.

 Despite his attempts, Leh was unable to

find any alternative position for Lesch

within Crown, and Lesch was forced into

early retirement on September 30, 1998,

the day the position of CIMS comptroller

was officially eliminated. Lesch

subsequently filed a charge with the EEOC

alleging that he had been terminated from

his position because of his age in

violation of the ADEA. He further alleged

that his position at Crown had not been

eliminated and that Genutis, a

substantially younger employee, had been

promoted to fill it. Based on the EEOC’s

right-to-sue letter, Lesch filed the same

"discriminatory termination" claim in the

district court.

 The theory of the case that Lesch

initially presented to the EEOC and to

the district court was that although CIMS

had been phased out, the job of manager

of CT’s accounting projects (which Lesch

had held) remained, and rather than

retaining him to continue those duties,

Crown fired him and promoted Genutis. By

the time the case reached the summary

judgment stage, however, Lesch had

reframed his theory of the case into

something that looked much more like a

"failure to transfer" claim. He conceded

that all positions in the CIMS accounting

group had been eliminated in the

reduction in force--including those

relating to CT’s accounting work--and

alleged instead that Crown had
discriminated against him on the basis of

age by failing to transfer him to a new

CT group position. In support of this

claim, he pointed to Genutis and Pittman

as younger workers who were transferred

despite their being less qualified than

he was to fill the positions. 

 For purposes of its analysis, the

district court proceeded as though Lesch

were arguing separate claims, one

fordiscriminatory termination and another

for failure to transfer. The court

granted summary judgment to Crown on

Lesch’s discriminatory termination claim.

It dismissed his failure to transfer

claim, principally because it was not

encompassed within his EEOC charge, and

alternatively on the merits.

II

 When a case is dismissed at the summary

judgment stage our review is de novo.

Trahant v. Royal Indem. Co., 121 F.3d

1094, 1095 (7th Cir. 1997). We consider

the evidentiary record in the light most

favorable to the non-moving party, in

this case Lesch, and draw all reasonable

inferences in his favor. Summary judgment

is only appropriate where the record

discloses no dispute as to any material

fact. Taylor v. Monsanto Co., 150 F.3d

806, 808 (7th Cir. 1998).

 Before going any further, we need to

clarify exactly what theory or theories

Lesch has preserved at this stage of the

case. As we said, over the course of this

litigation, Lesch has advanced two

distinct claims under the ADEA, one for

discriminatory termination, another for

discriminatory failure to transfer. The

district court correctly observed that

his EEOC charge mentioned only the

discriminatory termination claim. Lesch

is bound by the charges he filed with the

EEOC. Ritter v. Hill ’N Dale Farm, Inc.,

231 F.3d 1039, 1045 (7th Cir. 2000). This

means, as the district court concluded,

that the failure to transfer claim was

not properly before the district court.

As such, it is not properly before us

either, even if we read the charges of

discrimination liberally. Id. 

 Affirming this aspect of the district

court’s opinion would normally be of

relatively little consequence, as long as

the discriminatory termination claim
Lesch actually raised in his EEOC charge

was still in the case. But there is an

issue about this very point. Lesch’s

entire appellate argument has been framed

in terms of a discriminatory failure to

transfer him to the CT group--the claim

he did not raise with the EEOC. He

contends that the reasons Crown gives for

choosing both Genutis and Pittman over

him for the new CT group are pretextual.

We must therefore decide whether Lesch

has waived any potentially appealable

issues he might have had on his

discriminatory termination claim.

 Although the question is close, we

conclude that nothing Lesch has done

prevents us from reaching the merits of

this issue. Crown has itself waived any

opportunity to rely on any omissions

found in Lesch’s brief. See, e.g., Soo

Line R.R. Co. v. St. Louis Southwestern

Ry., 125 F.3d 481, 483 n. 2 (7th Cir.

1997). Crown did not urge us to affirm

the district court’s judgment on the

theory that the only claim Lesch

preserved for appellate review was the

flawed transfer one. Furthermore, on

these facts there is not a very

sharpdistinction between the two

characterizations of what happened at

Crown. On the one hand, Lesch’s job title

was eliminated, as was the CIMS

accounting group that he directed. The

directorship of the CT group position

could thus be viewed as a new position

into which Crown chose to transfer

Genutis rather than Lesch. On the other

hand, certain activities that Lesch had

previously overseen-- specifically, CT’s

accounting projects--remained after the

CIMS phase-out. In this sense, the CT

group director might be viewed as a

continuation of Lesch’s job under a new

name. The line between arguing that

Genutis was promoted into Lesch’s

position and arguing that Genutis was

hired over Lesch for a new position is

thus a fine one. We will therefore

address Lesch’s arguments to the extent

that they pertain to the discriminatory

termination claim.

 Lesch’s claim that he, rather than

Pittman, should have been given one of

the junior accountant positions in the CT

group is the one that is not properly

before us. That claim cannot be construed

as anything other than an argument that

Crown discriminated in choosing whom to
transfer into the CT group. We note for

the sake of completeness that even if we

were to consider Lesch’s claim with

respect to the junior accounting

position, the district court’s decision

appears to be correct. At 53, Pittman was

presumptively not "substantially younger"

than Lesch, and Lesch thus failed to

identify someone similarly situated but

substantially younger who was transferred

to a junior accounting position. See

Taylor v. Canteen Corp., 69 F.3d 773, 780

(7th Cir. 1995). Lesch also failed to

present sufficient evidence that Crown’s

explanation for not considering him for

the junior accounting position--that it

was a position significantly junior to

his own--was pretextual. We note in this

context that it is legitimate for an

employer to deem someone over-qualified,

as well as under-qualified, for a

position. See Dalton v. Subaru-Isuzu

Automotive, Inc., 141 F.3d 667, 679 (7th

Cir. 1998). 

 Because there is no direct evidence of

age discrimination in this case, Lesch

has proceeded using indirect evidence and

the burden-shifting approach first

articulated in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). Under

McDonnell Douglas, it was Lesch’s burden

to make out a prima facie case. To the

extent he was pursuing a discriminatory

termination theory, he was required to

present enough evidence to create a

triable issue of fact on each of the

following elements: 1) he is a member of

the class protected by the statute; 2) he

reasonably performed to his employer’s

expectations; 3) he was terminated; and

4) the position remained open or he was

replaced by someone substantially

younger. See, e.g., Radue v. KimberlyClark Corp., 219 F.3d 612, 617 (7th Cir.

2000). Where, as here, an employee is

terminated pursuant to a reduction in

force, the fourth element can also be

satisfied by showing that similarly

situated, substantially younger employees

were retained. Michas v. Health Cost

Controls of Ill., Inc., 209 F.3d 687, 693

(7th Cir. 2000). Under the normal

McDonnell Douglas analysis, once Lesch

substantiated his prima facie case, the

burden would shift to Crown to articulate

a legitimate non-discriminatory reason

for terminating or failing to transfer

Lesch. If Crown was able to do so, then

Lesch had to muster sufficient evidence

to convince a rational jury that Crown’s
justifications were pretextual. Beatty v.

Wood, 204 F.3d 713, 717 (7th Cir. 2000). 

 It is not always necessary to march

through this entire process if a single

issue proves to be dispositive. Here, as

is often true, that issue is pretext or

the lack thereof. Crown articulated

several legitimate business

justifications for Lesch’s termination.

To meet his burden of showing pretext,

Lesch had to present sufficient evidence

that the proffered reasons for the

termination had no basis in fact, that

they did not actually motivate Crown’s

decision, or that they were insufficient

to motivate the decision. Collier v. Budd

Co., 66 F.3d 886, 892 (7th Cir. 1995). He

has not done so. 

 Crown’s principal justification for its

decision to terminate Lesch was that the

CIMS comptroller position had been

eliminated as part of the phasing out of

CIMS. Lesch contends that this

justification was pretextual, because, he

claims, the e-mail from White to Leh

shows that the position was not really

eliminated. He wonders why else White

would be explaining to Leh her choice to

make Genutis and not Lesch the head of

the CT group. But the e-mail does not

indicate that the CIMS comptroller

position was merely being relabeled or

continued in some respect. It is

consistent instead with Crown’s assertion

that it was eliminating the CIMS

comptroller position as part of a

reorganization and that Crown was

creating a new entity with new accounting

positions to take over CT’s accounting

work. The fact that the head of the CT

group would have some of Lesch’s old job

responsibilities is not enough to create

a genuine issue of fact on the bona fides

of Crown’s motivations. 

 Lesch also suggests that evidence of

pretext can be found by looking at

White’s justifications for choosing

Genutis over him, but here, too, he does

not present enough to go forward. When

Crown decided that CIMS was no longer

necessary, it was White’s responsibility

to determine who from the disbanded CIMS

group would head up the new CT group. In

an e-mail to Leh, White explained her

decision to appoint Genutis rather than

Lesch to run the CT group:
[Genutis] had been heading up the

accounting for Corporate Technologies

ever since he joined the Alsip accounting

group for the purpose. He had done a fine

job for me and understood better than

anyone else the requirements and was the

obvious candidate to lead the team.

She also explained that she perceived

Lesch’s job for CIMS as "far more a case

of getting the books right than

participating in management decisions

which was the role I expected [Genutis]

to play," and that she believed that with

the exception of certain technical

issues, the two men were

"interchangeable" in terms of accounting

skills. Finally, she observed that "the

CT work required more & more use of PC’s

and this was a skill that [Lesch] did not

pick up but that [Genutis] introduced to

the department, training both the new

people and the 3 original staff."

 These are all legitimate business

reasons for terminating Lesch and

assigning his remaining duties to

Genutis. Moreover, while Lesch has

attacked some of the reasons on appeal,

he has said nothing about others. This

alone dooms his effort to establish

pretext. Where an employer offers

multiple independently sufficient

justifications for an adverse employment

action, the plaintiff-employee must cast

doubt on each of them. See Walker v.

Glickman, 241 F.3d 884, 890 (7th Cir.

2001). Here, Lesch has no evidence to

suggest that White did not or could not

believe that Genutis was the "obvious"

candidate to fill the position because he

was most familiar with CT’s accounting

projects, had been doing a good job for

her, and was sufficiently competent as an

accountant to lead the group. Nor has

Lesch identified evidence showing that

Genutis was not, in fact, more familiar

with CT’s accounting needs than Lesch, or

that Genutis was not doing a good job for

White. And there is certainly no evidence

that White did not believe these things

to be true. There is evidence in the

record to indicate that White might have

been mistaken about whether Lesch

andGenutis were largely "interchangeable"

in terms of their accounting skills,

given that Genutis was quite new to the

field, but Lesch has not offered evidence

to suggest that, based on her work with

Genutis, White could not have had this
perception. "On the issue of pretext our

only concern is the honesty of the

employer’s explanation," O’Connor v.

DePaul Univ., 123 F.3d 665, 671 (7th Cir.

1997), and Lesch has not cast doubt on

the honesty of White’s belief.

 Lesch specifically challenges only two

of White’s stated justifications for

choosing Genutis: (1) his superior

ability as a manager, and (2) his

superior knowledge of computers. With

respect to the first, Lesch offered

affidavit testimony that he was, in fact,

a skilled manager and that he had

originally limited Genutis’s direct

contact with White out of concern about

Genutis’s ability to work with other

managers. Lesch’s affidavit cannot,

however, tell us anything about whether

White genuinely believed that Lesch’s

CIMS position was less managerial and

more technocratic, or that Genutis would

be a better participant in managerial

decision-making. See, e.g., Ost v. West

Suburban Travelers Limousine, Inc., 88

F.3d 435, 441 (7th Cir. 1996).

 Lesch’s attempt to cast doubt on White’s

asserted preference for someone with

superior computer skills is similarly

unavailing. Accounting is a profession

(like many others) that has become

increasingly computerized in recent

years. The uncontroverted evidence in

this record establishes that CT was

moving toward a more computer-reliant

system of accounting. There is also no

question that Genutis’ understanding of

computers and dexterity with accounting

software was far superior to Lesch’s;

Genutis came to CIMS from a computing job

and, as White mentioned in her e-mail to

Leh, it was Genutis who trained Lesch’s

staff in the use of computers and

accounting software. On appeal, Lesch

goes to great lengths to demonstrate that

he was not completely computerilliterate--he could use a keyboard, he

could open and save Excel files, and he

could input data into spreadsheets. All

this may be true, but it is beside the

point. There is much more to

computerizing a company’s accounting

activities than knowing how to open an

Excel file, and Genutis was known to have

far more of the requisite skills. Much

more so than Lesch, he was well versed in

information technology and how it could

be used to make accounting operations

more efficient. White was entitled to
rely on this skill difference in choosing

between Lesch and Genutis, and there is

no evidence that her claim to have done

so was a lie. 

 Lesch has thus failed to meet his burden

of creating a triable issue of fact on

the critical question of pretext. This

failure in turn means that he did not

have enough evidence to survive summary

judgment on his discriminatory

termination claim and to proceed to a

full trial. This problem, coupled with

the fact that his failure to transfer

claim is not cognizable, leads us to

Affirm the district court’s grant of

summary judgment to Crown.