Krchnavy, Debra v. Limagrain Genetics ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2275
DEBRA KRCHNAVY,
Plaintiff-Appellant,
v.
LIMAGRAIN GENETICS CORPORATION
a/k/a LG SEEDS INCORPORATED,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00-C-445-C—Barbara B. Crabb, Chief Judge.
____________
ARGUED NOVEMBER 30, 2001—DECIDED JUNE 24, 2002
____________
Before FLAUM, Chief Judge, CUDAHY, and MANION, Circuit
Judges.
CUDAHY, Circuit Judge. In August 1999, Limagrain Ge-
netics Corp. (LG Seeds) terminated Debra Krchnavy, a 44-
year old woman, as part of a reduction-in-force (RIF). Short-
ly thereafter, some of her former duties were taken over by
a different LG Seeds employee, who happened to be a 34-
year old male. Krchnavy sued her former employer alleging
discriminatory discharge in violation of the Age Discrimina-
tion in Employment Act (ADEA), 29 U.S.C. § 621 et seq.,
and Title VII of the Civil Rights Act, 42 U.S.C. § 2000
et seq. (sex discrimination). The District Court granted
summary judgement for LG Seeds on all claims. Because
2 No. 01-2275
Krchnavy has not carried her burden of showing that LG
Seeds’ legitimate, nondiscriminatory reason for her ter-
mination was pretextual, we affirm.
I.
LG Seeds, a subsidiary of Limagrain Genetics Corpora-
tion, processes farm seed for sale to farmers and dealers.
Prior to 1999, the operations of LG Seeds included four
regional service centers, which were each comprised of
a sales office and a product warehouse. These centers were
located in Tecamah, Nebraska; Mt. Pleasant, Iowa; Wind-
fall, Indiana; and Prescott, Wisconsin. The Prescott facility,
where plaintiff Debra Krchnavy worked, had four full-time
employees: Krchnavy; Rich Cobian, a warehouse worker
and sales assistant; Craig Anderson, the office supervisor;
and John Squire, a sales agronomist. Krchnavy was the
only female in the office, and her status as the oldest em-
ployee was common knowledge.
Krchnavy’s employment with LG Seeds began in March
1995, when she was hired as a part-time employee. She was
transferred to full-time status in June of 1995 and given the
job title “Sales/Administrative Assistant-Office Manager.”
In this position, Krchnavy’s job responsibilities included
customer service and administrative work. Her customer
service work included responding to customer and employee
inquiries; preparing product comparisons; furnishing sales
reports; planning promotional trips; and assisting Anderson
with sales and marketing activities. The administrative
work included the preparation of billing and accounting
statements, which encompassed the preparation of accounts
receivable and payable statements; making bank deposits;
handling mail; tracking inventory; and the setting up and
maintenance of an office computer system and software.
In 1995, LG Seeds hired Rich Cobian as a “Sales and Ad-
ministrative Assistant-Warehouse and Shipment Coordina-
No. 01-2275 3
tor.” In this position, Cobian’s responsibilities varied de-
pending on the season. During the shipping season from
January to July, Cobian spent the majority of his time
performing warehouse tasks, which included the loading
and unloading of inventory; the organization and schedul-
ing of deliveries; the maintenance of inventory levels on LG
Seeds’ computer system; and the taking of orders direct-
ly from customers. During the nonshipping season from
July to December, Cobian delivered advertisements; pre-
pared literature; attended promotional events; assisted
dealers and customers with seed-related issues; and as-
sisted Squire in the preparation of product reports. In ad-
dition, Krchnavy trained Cobian to do her work in case she
was absent.
In 1999, LG Seeds merged corporately and operationally
with Akin-Callahan, Inc. Shortly thereafter, LG Seeds ini-
tiated a reorganization of its personnel, which it dubbed
the VEGA project. This reorganization was carried out at
the corporate level, and according to the record, none of
Krchnavy’s coworkers or supervisors participated in re-
organization decisions. The members of the VEGA project
team, who directed the reorganization, were company exec-
utives at locations other than Prescott. The goal of the re-
organization was to make operations more efficient and
profitable. As part of the VEGA project, LG Seeds decided
to consolidate its operations by closing four service centers
and centralizing its accounting and customer service func-
tions. Bruno Carette, who was part of the VEGA project
team, gave Barbara Wittig, Director of Human Resources
for LG Seeds, the task of determining which positions
were properly included within customer service, a category
which encompassed data entry, accounting and bookkeep-
ing.
From late June though mid-July 1999, Wittig identified
several employees who fitted within the customer service
category. Ultimately, the VEGA project team concluded that
4 No. 01-2275
the customer service duties of Krchnavy, along with several
other LG Seeds employees, should be consolidated at one
facility in Elmwood, Illinois. There are no allegations nor
evidence that Krchnavy’s job performance was a factor
in LG Seeds’ termination decision. In total, the VEGA proj-
ect resulted in the termination of forty-five employees. The
reorganization included the closure of the Prescott, Wind-
fall, Tekemah and Mt. Pleasant service centers. At the
Tekemah and Mt. Pleasant facilities, LG Seeds terminated
all of its employees. At the Windfall facility, the company
transferred its employees to a facility in Westfield, Indiana.
The Prescott facility was the only location at which the
employment decisions were mixed; Krchnavy was termi-
nated while Anderson, Cobian and Squire remained with
the company.
In August of 1999, Roger Bonsack, Anderson’s supervi-
sor, informed Anderson of some the details of the VEGA
project, including the decision of LG Seeds to close the
Prescott facility and to relocate many of its functions to
Elmwood. Because the reorganization included the consoli-
dation of accounting functions, Anderson was told that
Krchnavy’s employment was being terminated. During this
conversation, Anderson was also informed that Cobian
would not be part of the reduction in staff. Although
Cobian’s status was not specifically discussed, Anderson
knew that Cobian would have to be assigned some different
duties.
On August 16, 1999, Anderson informed Krchnavy that
LG Seeds was closing the Prescott facility and terminating
her. During this conversation, Krchnavy alleges that An-
derson told her that Squire and he would probably work out
of their homes, and that Cobian’s position had also been
eliminated. At about the same time that Krchnavy was
informed of her termination, Anderson told Cobian that LG
Seeds intended to eliminate his current position, but that
he would remain employed by LG Seeds. Within the next
No. 01-2275 5
few months, LG Seeds made a decision to open another
facility in River Falls, Wisconsin. Although Anderson did
not participate in the decision of the VEGA project team to
terminate Krchnavy’s employment, he did participate in the
decision to transfer Squires, Cobian and himself to River
Falls.
Sometime after her termination but before the closure of
the Prescott facility, Krchnavy alleges that several events
took place that led her to doubt the truthfulness of Ander-
son’s explanation of her discharge. First, Cobian had giv-
en her contradictory accounts of his employment status.
Originally, he told her that LG Seeds was eliminating the
warehouse duties of his job, which lead Krchnavy to assume
that Cobian was going to be terminated. However, Cobian
later informed her that he had been offered a new job do-
ing the same type of work as a sales assistant and that
he was taking over some of her former responsibilities.
Second, shortly after Krchnavy’s termination, her husband
went to her office to retrieve some of her belongings. While
at the office he had a conversation with Squire in which
Squire told him that Cobian was “taking over Debra’s job.”
Third, Krchnavy’s husband saw Cobian using her former
office.
In November 1999, Cobian, Anderson and Squire moved
into the new office in River Falls. Customer service duties,
such as accounting, invoicing and order entry, were no
longer being performed on site. These tasks were done at
the Elmwood facility by 37-year old Sally Coulter. However,
some customer service duties at the new office were shifted
to Cobian, such as answering questions and filling supple-
mental orders. In December 1999, Rich Cobian’s title was
changed to “Administrative Assistant/Marketing Support,”
in keeping with the fact that he no longer had substantial
warehouse duties. Because the River Falls facility had a
small seed storage facility that was used to supplement
customer orders, Cobian did retain some minimal ware-
6 No. 01-2275
house duties. During the shipping season, Cobian’s new job
required him to coordinate inventory, operate the seed
storage facility and address other customer needs. During
the non-shipping season, Cobian’s new position required
him to post signs in fields, attend promotional events, an-
swer customer inquiries, perform office upkeep and work on
product reports.
Although Cobian’s duties included some of the duties that
Krchnavy previously performed, Cobian did not perform
Krchnavy’s former customer service functions of accounting,
invoicing, entering orders or communicating with custom-
ers about accounting issues. Again, these duties were
now being handled at the Elmwood facility. Yet, from
Krchnavy’s perspective, it appeared that she had been
replaced by another employee who was both ten years
younger than she and male. Krchnavy therefore filed
charges of gender and age discrimination with the EEOC.
On two separate occasions, Wittig responded to an EEOC
inquiry using information supplied in part by Anderson
and Ed Germain, a member of the VEGA project team. On
January 4, 2000, Wittig informed the EEOC that LG Seeds
did not discriminate against Krchnavy with respect to
her termination; LG Seeds eliminated Krchnavy’s posi-
tion due to a company-wide reorganization plan, and Cobian
was not a customer service representative. Thus, LG Seeds
did not eliminate his position. On January 20, 2000, Wittig
informed the EEOC that, although Cobian performed a
slight portion of Krchnavy’s former duties, LG Seeds trans-
ferred Cobian, instead of Krchnavy, to the River Falls lo-
cation because the “majority” of Cobian’s previous duties
had to be performed in Wisconsin, while Krchnavy’s duties
were transferrable to the Elmwood facility.
After obtaining a right-to-sue letter from the EEOC,
Krchnavy commenced the current action in federal court.
The district court subsequently granted summary judgment
to LG Seeds on all claims. Although the district court found
No. 01-2275 7
sufficient evidence to constitute a prima facie case of age
and gender discrimination, the court granted summary
judgment to LG Seeds because Krchnavy failed to put
forward evidence that LG Seeds’ proffered reason for her
termination (the VEGA project reorganization) was a pre-
text for gender and/or age discrimination. Krchnavy now
appeals.
II.
We review de novo the district court’s grant of summary
judgment. See Paluck v. Gooding Rubber Co., 221 F.3d
1003, 1009 (7th Cir. 2000). In doing so, we view the record
in the light most favorable to Krchnavy, drawing all rea-
sonable inferences in her favor. See id.; Krocka v. City of
Chicago, 203 F.3d 507, 513 (7th Cir. 2000). Summary judg-
ment is appropriate only when no genuine issue of triable
fact exists regarding a material issue. See Paluck, 221 F.3d
at 1009; Krocka, 203 F.3d at 513. We apply the summary
judgment standard with special scrutiny to employment
discrimination cases, which often turn on issues of intent
and credibility. See Bellaver v. Quanex Corp., 200 F.3d 485,
491 (7th Cir. 2000); Geier v. Medtronic, Inc., 99 F.3d 238,
240 (7th Cir. 1996). However, the mere existence of some al-
leged factual dispute between the parties will not defeat
a motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986).
Krchnavy alleges that LG Seeds terminated her employ-
ment because of her age and gender, in violation of the
ADEA and Title VII. See 29 U.S.C. § 623(a)(1) (age); 42
U.S.C. § 2000e-2(a) (gender). Unlawful discrimination may
be proved though direct evidence of impermissible motive,
or indirectly by the burden-shifting method outlined by
the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 801-03 (1973). See Bellaver, 200 F.3d at 492-
493. The McDonnell Douglas framework applies to both
8 No. 01-2275
Title VII and ADEA claims. See O’Regan v. Arbitration
Forums, Inc., 246 F.3d 975, 983 (7th Cir. 2001) (age and sex
discrimination); Paluck, 221 F.3d at 1009-11 (age and sex
discrimination). Krchnavy relies on the indirect method,
which requires her to establish the four distinct elements of
a prima facie case: (1) she is a member of a protected
class; (2) she was performing at a level that met her em-
ployer’s legitimate expectations; (3) she was subject to an
adverse employment action; and (4) she was treated dif-
ferently than a similarly situated person outside the pro-
tected class. See McDonnell Douglas, 411 U.S. at 802;
O’Regan, 246 F.3d at 983.
Because unlawful discrimination can occur in a variety
of employment contexts, “we have adapted the requirements
for making a prima facie case in special cases to reflect the
reality of the workplace.” Michas v. Health Cost Controls of
Ill., Inc., 209 F.3d 687, 693 (7th Cir. 2000). In the tradi-
tional RIF case, an employer permanently eliminates a
position from the workplace. Bellaver, 200 F.3d at 494.
However, in a mini-RIF, such as this case, employees re-
maining at the company absorb the duties of their former
co-workers. See Michas, 209 F.3d at 693 (noting that in a
mini-RIF, a single employee is discharged, not replaced, and
his responsibilities are assumed by other members of the
workforce); Gadsby v. Norwalk Furniture Corp., 71 F.3d
1324, 1331 (7th Cir. 1995) (same). In a mini-RIF, we require
“that a plaintiff demonstrate that his duties were absorbed
by employees who were not members of the protected
class.” Michas, 209 F.3d at 693; see also Bellaver, 200 F.3d
at 495.
Once a plaintiff establishes a prima facie case, the burden
shifts to the employer to articulate a legitimate, nondis-
criminatory reason for the adverse action. If such a reason
is proffered, the plaintiff then bears the ultimate burden of
showing that it is a pretext for discrimination. McDonnell
Douglas, 411 U.S. at 802; Michas, 209 F.3d at 692-93. To
No. 01-2275 9
show pretext in a RIF case, an employee must establish
that an improper motive “tipped the balance” in favor of
discharge. Testerman v. EDS Tech. Products Corp., 98 F.3d
297, 303-04 (7th Cir. 1996) (quoting Umpleby v. Potter &
Brumfeld, Inc., 69 F.3d 209, 213 (7th Cir. 1995)). It is
insufficient “for the employee to show that the employer
acted incorrectly or undesirably by firing him”; instead, “the
employee must show that the employer did not honestly
believe in the reasons it gave for firing him.” Wolf v. Buss
(America) Inc., 77 F.3d 914, 919 (7th Cir. 1996).
For the purposes of this appeal, LG Seeds concedes that
Krchnavy has established a prima facie case of age and sex
discrimination.1 However, LG Seeds argues that the imple-
mentation of a RIF pursuant to the VEGA projection re-
organization plan is a legitimate, nondiscriminatory reason
for Krchnavy’s termination. The RIF plan mandated the
closure of several facilities and the consolidation of the
customer service functions of accounting, invoicing, and
order entry at the Elmwood facility. LG Seeds asserts that
it discharged Krchnavy because her job responsibilities
satisfied the predetermined criteria established by the
VEGA project.
Although Krchnavy concedes that the VEGA project
might be, in theory, a legitimate reason for her termination,
she argues that false and inconsistent statements by LG
Seeds officials are strong evidence of pretext. For example,
1
LG Seeds argued to the district court that Krchnavy failed
to establish the fourth prong of the prima facie case because
Krchnavy’s “principal” duties were in reality absorbed by 37-year-
old Sally Coulter rather than 34-year-old Rich Cobian. However,
the district court rejected this argument because a portion of
Krchnavy’s former job duties were now being handled by Cobian.
Although LG Seeds briefly reasserts this argument on appeal, the
focus of its brief is that its reason for terminating Krchnavy (the
VEGA project) was not a pretext for unlawful discrimination.
10 No. 01-2275
when Krchnavy’s former supervisor, Craig Anderson, in-
formed her that she would be terminated, Anderson did not
truthfully describe how the reorganization would affect
Squire, Cobian and himself, nor did he inform Krchnavy
of any plans to open another LG Seeds facility in River
Falls. Similarly, when LG Seeds’ human resource manager,
Babara Wittig, responded to inquiries from the EEOC, her
letters contained factual inaccuracies regarding the scope
of Cobian’s duties before and after the reorganization.
Yet, as LG Seeds correctly points out, there is nothing in
the record to suggest that either Anderson or Wittig par-
ticipated in the decision to terminate her employment. An
inference of pretext may be permissible only when deci-
sionmakers make false or inconsistent statements about the
circumstances of a particular employment decision. See
Castleman v. Acme Boot Co., 959 F.2d 1417, 1422 (7th Cir.
1992); cf. Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1293
& n.11 (7th Cir. 1997) (holding that derogatory comments
by nondecisionmakers cannot be relied on as evidence
of pretext and collecting cases); Jardien v. Winston Net-
work, Inc., 888 F.2d 1151, 1154 (7th Cir. 1989) (holding that
“actions and comments by employees not involved in a
discharge decision cannot provide a basis for charging oth-
er employees with discrimination”). In respect to Anderson,
it is undisputed that he was informed of the termina-
tion decision by his supervisor, Roger Bonsack. Although
Krchnavy argues that there is a disputed issue of material
fact whether Anderson supplied information forming the
basis for the discharge decision, she fails to direct us to any
record evidence that would support such a conclusion. See
Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002)
(“It is well settled that conclusory allegations . . . without
support in the record, do not create a triable issue of fact.”
(citing Patterson v. Chicago Ass’n for Retarded Citizens, 150
F.3d 719, 724 (7th Cir. 1998))). Likewise, it is undisputed
that when Wittig identified employees who performed cus-
No. 01-2275 11
tomer service tasks, including data entry, accounting and
bookkeeping, she relied on RIF selection criteria set by
the VEGA project team.
Krchnavy argues that under our earlier decision in
Fortino v. Quasar Co., 950 F.2d 389 (7th Cir. 1991), a pre-
text analysis need not be restricted to decisionmakers in
all circumstances. In Fortino, we stated in dicta that it may
be possible for an employee “outside the chain of decision”
to have “valuable information bearing on the charge of
discrimination.” Id. at 396. Krchnavy argues that Anderson
fits within such an exception because he was Krchnavy’s
immediate supervisor, informed her of the termination
decision and was contacted by Wittig before she filed re-
sponses with the EEOC. However, even if we were to as-
sume that Anderson was well-positioned to have “valuable
information” pertaining to the Krchnavy termination deci-
sion, his statements were not probative of age or gender
discrimination; rather, they were inaccurate statements
of how the Prescott closure would affect the employment
status of Squire, Cobian and himself. In Fortino, which also
resulted in a decision for the employer, the inadequacies
of the plaintiffs’ case were reversed. A manager gave a
speech in which he said that the average age of employees
in his group had dropped and thus the employees were
more capable of working longer hours. Id. at 395. Yet, this
court ruled that the statement was not probative of the
discrimination charge because the manager worked in a
completely different department and the plaintiffs failed
to put forward any evidence that he had information per-
tinent to the terminations in issue. Id. at 396.
Further, the deposition testimony suggests that the
communication between Wittig and Anderson regarding the
EEOC investigation was minimal. The only specific refer-
ence in the record relating to the investigation involved a
description of Cobian’s new duties at River Falls, which was
written by Anderson and relied on by Wittig to prepare the
12 No. 01-2275
EEOC response. Such a showing is insufficient to support
an inference of pretext.2
Finally, Krchnavy argues that LG Seeds’ official position
on Krchnavy’s termination is substantially contradicted
by subsequent events, thus casting doubt on its truthful-
ness. Specifically, Krchnavy was told that her position
within the company was being eliminated, with the major-
ity of her duties being absorbed by Sally Coulter at Elm-
wood; but in reality, a substantial portion of her job respon-
sibilities, along with her title of “Administrative Assistant,”
resurfaced in the River Falls facility and was assigned
to Cobian.
To support her interpretation of events, Krchnavy points
to our decision in Janiuk v. TCG/Trump Co., 157 F.3d
504 (7th Cir. 1998). In Janiuk, an employer initiated a
program of cost-cutting, which included the termination of
a 45-year-old sales manager. During subsequent age dis-
crimination litigation, the employer maintained that the
sales manager position had been completely eliminated
while the plaintiff maintained that his job had been reas-
signed to a younger manager whom he had formerly su-
pervised. Id. at 506. To buttress his theory, the plaintiff
pointed to an organization chart, created within days of
his termination, which essentially substituted the young-
er manager in the position formerly occupied by the plain-
tiff. Id. Such charts were routinely updated by the employer
so that they could be relied on both for internal operations
and for external sales presentations. Id. This court reversed
2
In her deposition testimony, Barbara Wittig acknowledged that
she also consulted with Ed Germain, a member of the VEGA proj-
ect team, in order to gather information for the response to the
EEOC. However, the substance of this communication is never
addressed during the course of the deposition, nor is it raised in
Krchnavy’s briefs.
No. 01-2275 13
a grant of summary judgment for the employer, reasoning
that if the chart was an accurate depiction of the organiza-
tion following the firing of the plaintiff, a reasonable juror
could conclude that the employer’s proffered justification
was pretextual. Id. at 507-08.
Janiuk, however, presented a much stronger case of
pretext than the case now before us. While it is true that
Cobian’s position at River Falls was titled “Administra-
tive Assistant/Marketing Support,” which is similar to
Krchnavy’s former title of “Sales/Administrative Assistant-
Office Manager,” it is also true that Cobian’s title in
Prescott was “Sales and Administrative Assistant-Ware-
house and Shipment Coordinator.” As the similar titles
suggest, this case involved a reassignment of an employee’s
specific duties rather than a replacement of one employee
by another, as allegedly occurred in Janiuk. Prior to the
Prescott closure, it is undisputed that Cobian occasional-
ly performed many of Krchnavy’s duties. Following the
VEGA project reorganization, some of Krchnavy’s duties
were consolidated at Elmwood and the balance were
ostensibly assigned to Cobian in River Falls. In addition,
Cobian also retained the job of overseeing a mini-ware-
house. Although it is certainly arguable that Krchnavy was
well-qualified for Cobian’s River Falls position, this line
of reasoning is not relevant to the underlying issue of pre-
text. Instead, it merely questions the business judgment
of LG Seeds. It is well settled that this line of analysis
does not justify our intervention. See, e.g., Ritter v. Hill ‘N
Dale, 231 F.3d 1039, 1044 (7th Cir. 2000) (“This court has
consistently emphasized that it will not ‘sit as a super
personnel department to review an employer’s business
decisions.’ ” (quoting Ransom v. CSC Consulting, Inc., 217
F.3d 467, 471 (7th Cir. 2000))).
14 No. 01-2275
III.
In summary, Krchnavy has failed to put forward suffi-
cient evidence to permit a reasonable juror to conclude that
LG Seeds’ proffered reason for her discharge was a pretext
for a decision motivated by age or gender. Therefore, claims
under both the ADEA and Title VII must fail. The judgment
of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-24-02