# Adams v. Indiana Bell Telephone Co., Inc.

> District Court, S.D. Indiana · January 23, 1998 · 2 F. Supp. 2d 1077

URL: https://www.frixlaw.com/law-library/cases/2486541

## Case

- **Full name:** Kim ADAMS, Et Al., Plaintiffs, v. INDIANA BELL TELEPHONE COMPANY, INC. and Ameritech Services, Inc., Defendants
- **Court:** District Court, S.D. Indiana
- **Decided:** January 23, 1998
- **Citations:** 2 F. Supp. 2d 1077; 1998 U.S. Dist. LEXIS 5676; 1998 WL 199290
- **Precedential status:** Published
- **Opinion:** Opinion by McKINNEY
- **Judges:** McKINNEY
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2486541

## How later opinions describe it (automated extraction)

- finding statistical evidence flawed where the evidence failed to take into account variables other than age

## Opinion text

ORDER ON MOTIONS TO STRIKE AND FOR SUMMARY JUDGMENT
McKINNEY, District Judge.
Currently pending before the Court are two dispositive motions on the claims of the plaintiffs brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621
et seq.,
as well as several related motions. The plaintiffs have raised both individual and pattern or practice claims of age discrimination, which they maintain occurred during a corporate-wide resizing process in 1992 and 1993 at Ameritech Services, Inc. (“ASI”). The related motions are three motions to strike the evidence plaintiffs plan to offer through their statistics, labor economics, and industrial psychology experts. If granted, the motions to strike will have the effect of excluding a substantial portion of the evidence on which plaintiffs rely in opposition to the pending summary judgment motions. Thus, the Court will first address the issues raised by these motions.
I. MOTIONS TO STRIKE
A. STANDARDS
According to Rule 12(f) of the Federal Rules of Civil Procedure:
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[U]pon motion made by a party within 20 days after the service of the pleading upon the party or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
Generally, motions to strike are considered a drastic remedy, and are strongly disfavored.
Federal Nat’l Mortgage Ass’n v. Cobb,
738 F.Supp. 1220, 1224 (N.D.Ind.1990);
see also New York v. Almy Brothers, Inc.,
971 F.Supp. 69, 72 (S.D.N.Y.1997). Accordingly, such motions “are ordinarily not granted unless the language in the pleading at issue has no possible relation to the controversy and is clearly prejudicial.”
Cobb,
738 F.Supp. at 1224 .;
Abdulrahim v. Gene B. Glick Co.,
612 F.Supp. 256 , 260 n. 1 (N.D.Ind.1985). A trial court, however, clearly has discretion to grant a well-taken motion to strike.
Mirshak v. Joyce,
652 F.Supp. 359, 370 (N.D.Ill.1987). In exercising that discretion, the Court must consider the value of the pleading in light of other rules of procedure.
Rule 56(e) requires that affidavits supporting or opposing a motion for summary judgment set forth facts that would be admissible in evidence, and show “affirmatively that the affiant is competent to testify to the matters” presented. Fed.R.Civ.P. 56(e). Courts may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.
Id.
Although the evidence presented in opposition to or support of summary judgment does not have to be in admissible form, it must be admissible in content.
See Winskunas v. Birnbaum,
23 F.3d 1264, 1267-68 (7th Cir.1994) (evidence must be of “evidentiary quality,” meaning that a change in form but not in content would make the evidence admissible at trial). Examples of such evidence include certified documents or sworn testimony, such as depositions or affidavits.
Id.
at 1267 .
To be admissible, testimony must be relevant to the facts the party intends to prove under the legal theory that has been chosen to support the party’s claim.
See
Charles A. Wright & Kenneth W. Graham, Federal Practice And Procedure: Evidence § 5162. “Relevance is a relationship between the evidence offered and the fact it is supposed to prove.”
Id.
A piece of evidence may be excluded as irrelevant in one of two ways. First, it may provide satisfactory proof of a fact in dispute, but the fact for which it is offered is not a material fact in the case.
Id
Second, it may be directed at a material fact, but not have any value as proof of that fact.
Id.
A material fact is a “fact that is of consequence to the determination of the action.” Fed.R.Evid. 401.
B. RELEVANCE AND MATERIALITY
1. Relevance
Relevant evidence is evidence that has any tendency to make the existence of a fact of consequence to the determination of the matter
(i.e.
“material fact”) more probable or less probable than it would be without the evidence. Fed.R.Evid. 401. The term “any tendency” is so broad that it has the effect of allowing admission of evidence that has only the slightest bit of probative worth. Charles A. Wright & Kenneth W. Graham, Federal Practice § 5165. In fact, the Seventh Circuit has called the definition of relevance under Rule 401 “expansive.”
United States v. Pollard,
790 F.2d 1309, 1312 (7th Cir.1986),
overruled on other grnds. by United States v. Sblendorio,
830 F.2d 1382 (7th Cir.1987). Generally, all relevant evidence is admissible, and irrelevant evidence is inadmissible. Fed.R.Evid. 402. The weight of the evidence, however, is for the jury to decide. Judges may not weigh the evidence when determining its relevance. Thus, arguments about the quality or probative value of the evidence advanced to defeat its admissibility are inapplicable to the inquiry.
Once it is found to be relevant, some evidence may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, if it brings about confusion of the issues, or if it is misleading for the jury. Fed.R.Evid. 403. It is in this process that the judge may weigh the evidence. Rule 403 presumes a finding that the evidence in question makes some fact in dispute more or less probable. If not, the court may not consider it under Rule 403. By probable it is meant “uncertain, but likely to be true.” Wright & Graham § 5165. The court measures probative value by weighing
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the evidence in terms of its relationship to the truth or falsity of propositions of fact sought to be proved.
Id.
Rule 403 recognizes the discretion of a judge to exclude evidence, but seeks to,limit the exercise of that discretion.
Id.
§ 5212. Even though the court’s role in determining admissibility is limited, it must “weigh” the evidence to determine if its probative value exceeds any procedural problems it creates.
See
Wright & Graham § 5165. In doing so, the judge must be careful not to usurp the role of the jury under the guise of determining probative value. A judge may exclude evidence only after balancing the “competing considerations” listed in the rule and finding that the procedural harm caused by the evidence substantially exceeds its probative value.
Id.
It is this balancing or weighing that furthers the policy behind Rule 403 of limiting judicial discretion in the admission and exclusion of evidence.
Id.
§ 5214. The probative value of the evidence must be substantially outweighed by its prejudicial effect, or by the danger that it might mislead or confuse the jury, before the court would have discretion to exclude it.
Id.
If the balance goes against the probative worth of the evidence, the court may, but is not required to, exclude the evidence.
Id.
Thus, application of Rule 403 involves a two-step process: balancing, then exercising discretion.
When balancing evidence, the court should be mindful of the nature of the evidence. For example, evidence that.proves an ultimate fact without any inferential step, except for a credibility determination, is deemed at this stage to be more probative than evidence that would require an inference to be drawn before the ultimate fact may be supported.
Id.
§ 5214. The weighing process under Rule 403 requires the judge to assume the credibility of a witness, because to do ■ otherwise would usurp the jury’s function.
Id.
Thus, the probative worth of eyewitness testimony as to an ultimate fact is presumed to be 100%.
Id.
Nevertheless, very little evidence is of such caliber. More often a witness or document provides circumstantial evidence, or evidence that requires an inferential step before it can prove an ultimate fact. Some evidence may require several inferential steps, which lessens its probative value over evidence requiring none or one. Evidence that requires an inference before it can prove a material fact may be countervailed by offerings of the other party that make the inference less reasonable.
Probative value is not a precise mathematical term.
Id.
Rather it is a reflection of the economic concepts of supply and demand.
Id.
The need for the evidence is assessed against the possible supply of alternative means of proving the fact.
See id.
2. Materiality
Evidence may be entirely relevant to an issue in dispute, but the issue itself may not be material to the action. Such evidence would be deemed irrelevant, but on the basis of the lack of materiality of the ultimate fact it is intended to prove. Materiality is determined with reference to the substantive law being applied, and it depends on the legal theories the plaintiffs seek to employ to support their claims.
Here, the plaintiffs have brought their claims under the Age Discrimination in Employment Act (“ADEA”). 29 U.S.C. §§ 621
et seq.
The ADEA provides in part:
the purpose of this chapter [is] to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment;
It shall be unlawful for an employer—(1) to discharge any individual or otherwise discriminate against any individual ... because of such individual’s age; (2) to limit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age;
It shall not be unlawful for an employer ... (1) to take any action otherwise prohibited ... [in] this section where age is a bona fide occupational qualification ... or
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where the differentiation is based on reasonable factors other than age ....
29 U.S.C. §§ 621 (b), 623(a)(1), 623(a)(2), 623(f)(1).
Employees may enforce the ADEA against their employer either in their individual capacities or as nominal plaintiffs in an opt-in class action.
See
29 U.S.C. § 626 (b) (incorporating 29 U.S.C. § 216 (b) by reference);
Grayson v. K Mart Corp.,
79 F.3d 1086, 1096 (11th Cir.),
cert. den.,
— U.S. —, 117 S.Ct. 435 , 136 L.Ed.2d 332 (1996). The employees here have done both. To state an individual claim for age discrimination under the ADEA, plaintiffs must offer direct evidence of discrimination, or use the indirect, burden-shifting, method of proof described in
McDonnell Douglas v. Green,
411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). Using the direct method, a plaintiff may prove discrimination by providing evidence that the fact-finder may interpret as the employer’s acknowledgment of discriminatory intent.
Chiaramonte v. Fashion Bed Group, Inc.,
129 F.3d 391, 396 (7th Cir.1997). For it to succeed, such evidence must clearly demonstrate the motivation of the person who made the contested employment decision.
Id.
(citing
Cheek v. Peabody Coal Co.,
97 F.3d 200, 203 (7th Cir.1996)). To succeed on the individual age discrimination claim, a plaintiff must prove that age was the determining factor in that decision.
Id.
That task is more difficult in the context of a corporate-wide workforce resizing and restructuring, as happened here.
See Hartley v. Wisconsin Bell, Inc.,
124 F.3d 887, 889 (7th Cir.1997);
Testerman v. EDS Technical Products Corp.,
98 F.3d 297, 303-04 (7th Cir.1996) (in a ease involving a reduction in force (“RIF”), a claimant must show that age “tipped the balance” in favor of his or her discharge). When an employer must reduce its workforce, “it is foreordained that some employees will lose their jobs; and ... the defendant inevitably will be able to point to some imperfection as a reason for the discharge.”
Testerman,
98 F.3d at 304 . However, if the employer fires an older employee who would otherwise have survived the RIF but for his age, the ADEA is violated.
Id.
In this context, the court must deal with “small gradations, with an employer’s subjective comparison of one employee to another, and it is incumbent upon [the court] to remember that what is at issue is not the wisdom of the employer’s decision, but the genuineness of the employer’s motives.”
Id.
In
Chiaramonte ,
the plaintiff attempted to prove motivation of the decision-maker, president John Elting, by offering evidence of statements made by the company’s chief executive officer, John Singer.
Chiaramonte,
129 F.3d at 396 . Singer allegedly told Chiar-amonte that “age had to be a factor” in the decision to terminate him.
Id.
at 397 . However, Chiaramonte had no evidence that Elt-ing and Singer had discussed the reasons for Chiaramonte’s termination, nor could he provide evidence that Elting made statements that could be interpreted as age-related animus.
Id.
Elting’s deposition testimony indicated that he was the sole decision-maker, although he does not unambiguously deny having discussed the decision with Singer. Singer, however, unequivocally denied discussing the decision with Elting.
Id.
“Statements by a non-decision-maker that amount to mere speculation as to the thoughts of the decision-maker are irrelevant to [the] inquiry.”
Id.
Chiaramonte also offered as evidence of discrimination comments made by Debbie Lunn, a lower-level supervisor, that the company planned to get rid of “all you old people.”
Id.
Lunn, who often socialized with Elting, denied making the statement.
Id.
Even if she had, it would have no probative value the court said, because Lunn had no control over the decision to discharge Chiara-monte.
Id.
“[A]ctions and comments by employees not involved in a discharge decision cannot provide a basis for charging other employees with discrimination.”
Id.
If an employee cannot provide direct evidence of discrimination, he or she may adopt the traditional burden-shifting method of proof. However, the
McDonnell Douglas
method is not an “efficient formula” for large-scale workplace restructuring cases.
Hartley,
124 F.3d at 889 . Ordinarily, this approach is based on the legitimate assumption that the plaintiff was doing fine in his or her job, then lost it, and was replaced by someone younger, or white, or male, or not disabled.
Hartley,
124 F.3d at 889 . Apply
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ing that rationale to a RIF case is problematic because it “ignores the circumstances surrounding [the] termination and it presumes [the plaintiff] was singled out for termination.”
Id.
When an employer must reduce its workforce, employees who were doing fine in their jobs may lose them.
Id.; see also Sheehan v. Daily Racing Form, Inc.,
104 F.3d 940, 943 (7th Cir.),
cert. den.,
— U.S. —, 117 S.Ct. 2480 , 138 L.Ed.2d 989 (1997). Nevertheless, adapting this method to the RIF context, an employee may establish a prima facie case by showing:
1. Membership in a protected age group;
2. Satisfactory job performance;
3. An adverse employment action, such as a discharge; and
4. That substantially younger, similarly-situated employees were treated more favorably.
Chiaramonte,
129 F.3d at 398 (citing
O’Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 , 116 S.Ct. 1307, 1310 , 134 L.Ed.2d 433 (1996)).
By establishing these elements of a prima facie case of age discrimination, the employee shifts the burden of production to the defendant, who must come forward with a legitimate, non-discriminatory explanation for the decision. Provided that the defendant succeeds in meeting this. obligation, the presumption of discrimination created by the prima facie case is rebutted. The burden then shifts back to the plaintiff to prove that the employer’s stated reasons are pretextual, either by showing that they are unworthy of credence or that a discriminatory reason more likely motivated the decision.
Id.
The ultimate burden of persuasion on the issue of discrimination, however, always lies with the plaintiff.
Id.
A crucial difference in a RIF case, is that the defendant can meet its burden of production by explaining the reasons behind the downsizing and the process used to select employees for discharge. Thus, the burden quickly returns to the plaintiff to show that those reasons were a pretext for discrimination, or that the process was deliberately designed to weed out older workers. Unlike an age discrimination ease when no reduction in force occurred, the question is not whether the employee was or was not performing satisfactorily, but whether the employer “honestly believed that [the plaintiff] was the weakest member of the department.”
Sirvidas v. Commonwealth Edison Co.,
60 F.3d 375, 378 (7th Cir.1995). Plaintiffs lose at the pretext stage if the court finds that the defendant “honestly believed in the nondiscriminatory reasons it offered, even if those reasons are foolish or trivial or even baseless.”
Hartley,
124 F.3d at 890 .
Another difference in the RIF context is seen when plaintiffs sue on behalf of those similarly situated based on an alleged pattern or practice of age discrimination. In that context, the prima facie case is established by showing that unlawful discrimination has been the company’s standard operating procedure, the regular rather than the unusual practice.
EEOC v. Chicago Miniature Lamp Wks.,
947 F.2d 292, 297 (7th Cir.1991);
Coates v. Johnson & Johnson,
756 F.2d 524, 532 (7th Cir.1985). It usually consists of “statistical evidence demonstrating substantial disparities in the application of employment actions as to ... the protected group, buttressed by evidence of general policies or specific instances of discrimination.”
Coates,
756 F.2d at 532 (citing
International Bhd. of Teamsters v. United States,
431 U.S. 324, 336, 360 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977)). Evidence of discrimination against particular individuals may form part of the proof for a pattern or practice claim. However, to elevate individual claims to the level of a pattern or practice case requires evidence that the discriminatory treatment is typical of the employer’s employment practices, or that those practices are motivated by a policy of discrimination against the protected class that pervades the entire business.
King v. General Elec. Co.,
960 F.2d 617 , 623 (7th Cir.1992). Another way to satisfy the evidentiary requirement would be to show that a policy of discrimination that is reflected in the employer’s other employment practices, is the same as reflected in the practice at issue.
Id.
The employee must prove by “significant evidence” the regular, purposeful, less-favorable treatment of members of a protected group.
Id.
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Once a pattern or practice prima facie case is established, the burden shifts to the defendant to show that the plaintiff’s statistical proof is inaccurate or insignificant, or that a nondiseriminatory explanation exists for the disparity.
Coates,
756 F.2d at 532-33 . The strength of the evidence needed to accomplish this depends on the strength of the plaintiffs proof.
Id.
Interestingly, a defendant has two possible courses of action open for rebutting the prima facie case. First, it may offer proof that negates the pattern or practice, such as evidence of the inaccuracy or invalidity of the plaintiffs statistics.
Id.
In fact, the most effective way to rebut a statistically-based prima facie case is to offer more accurate statistics.
Id.
at 544 . By offering statistics that include an omitted factor and showing that the statistics no longer indicate discrimination, a defendant shifts the burden back to the plaintiff. Likewise, a defendant may offer a non-discriminatory explanation for the apparently discriminatory overall result.
Id.
at 537 . Second, the defendant may proffer a legitimate nondiscriminatory reason for the employment decision made with respect to each class member.
Coates,
756 F.2d at 533 . Offering a non-discriminatory reason only for the discharge of each named plaintiff will weaken, but not destroy, the class action for a pattern or practice of discrimination.
Id.
In light of these burdens and using the direct method to prove either type of claim, the material facts a plaintiff must prove include those that tend to show the employer’s intent or motivation. These could be discriminatory statements or comments made by the decision-maker, or attributed to the decision-maker, or those made by others to which the decision-maker has agreed. Likewise, circumstantial evidence, such as a statistical imbalance in the employer’s workforce, can be material to the inquiry under the direct method of proof.
See Perfetti v. First Nat’l Bank of Chicago,
950 F.2d 449, 450 (7th Cir.1991),
cert. den.,
505 U.S. 1205 , 112 S.Ct. 2995 , 120 L.Ed.2d 871 (1992) (describing four methods
of proving
employment discrimination).
However, under the indirect method for individual claims, the material facts are those tending to prove each of the elements of the prima facie case as they relate to an individual plaintiff. Also material is the defendant’s explanation for the decision against each plaintiff and evidence about the plaintiff’s allegations of pretext. For example, evidence that similarly-situated, but substantially younger, workers were retained for the same types of jobs the plaintiffs had been performing would be material to an indirect method of proof.
1
Likewise, direct evidence of a contradiction between the employer’s expressed justification for a decision and documentation created at the time of the decision would be material to the pretext inquiry.
Perfetti,
950 F.2d at 451 . Circumstantial evidence of pretext, such as showing that a proffered justification was not a genuine job requirement, or that the criteria or rules were inconsistently applied to others, would also be material.
Id.
The framework for the indirect method of proof in the pattern or practice type of claim is comparable to that in
McDonnell Douglas ,
except the content of the specific stages will be different.
Coates,
756 F.2d at 533 . For example, the focus in the class action is on a pattern of discriminatory decision-making.
Id.
This means that specific allegations of individual discrimination may be material, but not unless the number of instances is significant.
Id.
On the other hand, strong statistical evidence of a pattern of discrimination may be rebutted with more accurate statistics. Once a prima facie showing is made, each class member will benefit from a presumption of discrimination for their individual claims, which must be rebutted separately by the defendant.
See King,
960 F.2d at 623;
Coates,
756 F.2d at 532 . However, the defendant may rebut a class pattern or practice prima facie case with evidence showing a non-discriminatory reason for the overall disparity, or by challenging the statistics.
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C. RELIABILITY AND USEFULNESS
In addition to being relevant and material, scientific or other specialized evidence must also be reliable before it can be admitted into evidence. In
Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), the Supreme Court established a standard for determining the admissibility of scientific evidence and expert testimony.
Bradley v. Brown,
42 F.3d 434, 437 (7th Cir.1994);
O’Conner v. Commonwealth Edison Co.,
13 F.3d 1090, 1106 (7th Cir.),
cert. den.,
512 U.S. 1222 , 114 S.Ct. 2711 , 129 L.Ed.2d 838 (1994). To assist district courts with assessing reliability, the Court set up a framework of analysis that fits into the preliminary analysis of evidence required by Rule 104.
1. Daubert Standard
Under the federal rules of evidence, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence and determine the facts in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise. Fed.R.Evid. 702. Under the
Daubert .
framework, the court must assess whether the expert is qualified and will testify to reliable scientific knowledge that is helpful to the trier of fact. The witness is qualified as an expert by “knowledge, skill, experience, training or education,” and the expert’s testimony will be helpful if, among other things, it is relevant. The latter inquiry corresponds to the relevance determination made with respect to non-technieal or scientific evidence under Rule 401. If an expert’s testimony is not based on rehable scientific knowledge, or if it is based on such knowledge but fails to relate to any material facts, then it is not us.eful.. If the expert’s testimony is not helpful, it is not relevant.
The reliability of scientific knowledge is assessed in relation to this non-exclusive list of factors:
1. whether a theory or technique can be or has been tested;
2. whether a theory or technique has been subjected to peer review and publication;
3. the known and potential rate of error; and
4. the “general acceptance” of the theory or technique.
After this preliminary assessment of the scientific validity of the evidence to be offered, the court determines whether the reasoning or methodology properly can be applied to the facts in issue (that is, whether it fits the facts).
Daubert,
509 U.S. at 593-94 , 113 S.Ct. 2786 ;
Bradley,
42 F.3d at 437 .
Even before
Daubert
the Seventh Circuit had discussed the proper use of expert witness testimony:
See Mid-State Fertilizer v. Exchange Nat’l Bk.,
877 F.2d 1333 (7th Cir.1989). That discussion guides the court’s assessment of whether the testimony will be useful to the factfinder. Applying Federal Rule of Evidence 705, the court may allow an expert to present “naked” opinions.
Id.
at 1339 . Admissibility, however, does not mean utility.
Id.
With fact witnesses, to overcome a summary judgment motion a proffered affidavit must “set forth facts” that would be admissible. Fed.R.Civ.P. 56(e). In the case of an expert witness (who is a non-fact witness), the affidavits or reports should set forth “a process of reasoning beginning from a firm foundation.”
Mid-State,
877 F.2d at 1339 . Expertise is a rational process, and a “rational process implies expressed reasons for judgment.”
Id.
(citing
FPC v. Hope Natural Gas,
320 U.S. 591, 627 , 64 S.Ct. 281 , 88 L.Ed. 333 . (1944)). Moreover, an opinion is only as good as the sources behind it. “An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.”
Id.
This is especially true when the opinion makes no sense in light of the circumstances. Judges must look behind an expert’s ultimate conclusion and analyze the. adequacy of its foundation.
Id.
at 1339. If the factual context makes the claim implausible, then the plaintiff must provide, more persuasive evidence than would otherwise be necessary.
Id.
Only after discerning the reliability and usefulness of the proffered evidence, will the court balance its probative value against the danger of a prejudicial effect, confusion of the issues, or other factors found in Rule 403. Even though an expert may be quali
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fied to testify about the results of some scientific study, and the study might prove helpful to the jury, the court may exclude the testimony if it finds that the evidence is of so little probative value that the prejudicial effect will substantially outweigh it. “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 ... exercises more control over experts than over lay witnesses.”
Daubert,
509 U.S. at 595 , 113 S.Ct. 2786 (quoting Weinstein,
Rule 702 of the Federal Rules of Evidence is Sound: It Should Not Be Amended,
138 F.R.D. 631 , 632 (1991)). Finally, if the court is satisfied that the evidence is relevant, reliable, and admissible, it will then consider the evidence as a whole to determine if it suffices to raise a genuine issue of material fact for trial.
The court’s role in determining admissibility of scientific or other technical evidence is that of a gatekeeper.
General Elec. Co. v. Joiner,
— U.S. —, —, 118 S.Ct. 512, 517 , 139 L.Ed.2d 508 (1997);
Daubert,
509 U.S. at 589, n. 7 , 113 S.Ct. 2786 . It performs that role by examining the methodology and reasoning behind the expert’s opinion, in the context of his or her conclusions, which are not “entirely distinct” from methodology.
Joiner,
118 S.Ct. at 523 .
Trained experts commonly extrapolate from existing data. But nothing in either
Daubert
or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the [bare assertion] of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.
Id.
(citing
Turpin v. Merrell Dow Pharm., Inc.,
959 F.2d 1349 , 1360 (6th Cir.1992)). The district court in
Joiner
had done precisely that, and the Supreme Court ruled that it was error for the Eleventh Circuit Court of Appeals to reverse that finding.
Id.
118 S.Ct. at 519 .
Further,
Daubert
does not say that a “failure to adhere to the customary methods for conducting a particular kind of scientific inquiry is
irrelevant
to the admissibility of the scientist’s testimony. On the contrary, ... it is relevant.”
Braun v. Lorillard Inc.,
84 F.3d 230, 235 (7th Cir.),
cert. den.,
— U.S. —, 117 S.Ct. 480, 136 . L.Ed.2d 375 (1996). If an expert departs from the generally accepted methods in her field, the court may appropriately insist that the departure be grounded in “demonstrable and scrupulous adherence to the scientist’s creed of meticulous and objective inquiry.”
Id. Braun
was a case in which the plaintiffs attorney hired an expert who specialized in detecting asbestos in buildings, after the experts he had hired who specialized in detecting it in humans had failed to achieve the desired results. .
Id.
The court stated that this is the kind of abuse
Daubert
sought to prevent.
Id.
In sum, as the Seventh Circuit recently noted, courts must determine if the proffered evidence is “genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist.”
Rosen v. Ciba-Geigy Corp.,
78 F.3d 316, 318 (7th Cir.),
cert. den.,
— U.S. —, 117 S.Ct. 73 , 136 L.Ed.2d 33 (1996). This does not mean that judges must determine the essence of “real” science. Instead, “the goal is to make sure that when scientists testify in court they adhere to the same standards of intellectual rigor that are demanded in their professional work.”
Id.
at 318.
2. Use of Statistics
Statistical evidence is a type of “other specialized knowledge” that may be useful in a discrimination case, but only when the quality of the data can be verified.
See
Federal Judicial Center, Reference Manual on Scientific Evidence 341 (West Pub.1994). That is because “statistics are so manipulable that some skepticism may be justified” when they are offered in the evidentiary context.
Coates,
756 F.2d at 529 . Verification involves determining if the measurement process was reliable and valid, and whether the measurements were recorded accurately. Manual on Scientific Evidence 341. Reliable statistical evidence is that which was obtained from a measure or model that produces consistent results that can be reproduced repeatedly.
Id.
The measuring instrument or model should be capable of being validated, that is, there must be some independent and highly accu
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rate way of measuring the variable being analyzed.
Id.
at 342. For example, the validity of an employment test is measured by comparing the results to actual job performance. Finally, the data must have been recorded properly, with no gaps or mistakes present.
Id.
If gaps or mistakes exist, they should appear randomly so as not to distort the results.
Id.
When all of these conditions are met, the measuring device has been verified, but it still must be applied to the correct data. “Statistical analysis appears to be a science and, when properly and fairly used, it can be of great assistance to the factfinder.”
Coates,
756 F.2d at 539 . Thus, it is important to determine how the data to be measured has been selected and whether there is any evidence of selection bias. For example, “[a] census measures some characteristic of every unit in a
population
of individuals or objects.” Manual on Scientific Evidence 343 (emphasis in original). With this measure, it is the population that is selected. As a type of observational study, a census yields useful results only when the population is relevant to the inquiry for which the statistical analysis is being performed.
See id.
at 343. Moreover, the analysis of census results may be affected by the omission of some units from the population.
Id.
If this occurs, the expert should ask whether the missing data is likely to differ in some systematic way from the data actually measured.
Id.
If so, a supplemental study may be necessary.
Parties often attempt to prove causation by using statistical associations identified in an observational study. The associations among variables are expressed as percentages, proportions, ratios, correlation coefficients or slopes of regression lines. Moore’s Federal Practice Reference Manual on Scientific Evidence 362 n.96 (Fed.Jud.Ctr. 1995). Even though an association is identified, however, there is a second issue: is the association causal?
Id.
Thus, identifying an association is only the first step.
To explore a possible cause and effect relationship further study is required. The investigator should then observe the effect on one variable, the dependent variable, of manipulation of another, an independent variable.
Id.
at 348. Independent variables represent the possible “causes” of the “effect” being studied. If the study does not contemplate the results of manipulating various independent variables, it does little to prove causation. That is because the real cause of the observed results may be variables other than the one with which the dependent variable is associated. When an association is identified among variables, a controlled experiment will help identify which independent variable caused the effect. In fact, this is the best way to eliminate other variables as possible causes of observed associations.
Id.
at 347. If a controlled experiment is not conducted, then the investigator should at least measure the group in which the effect occurred against a comparable group in which the effect is not expected or observed.
See id.
at 349. The key to success, however, is that the second group actually be comparable.
Another issue that arises with observational studies is that the investigator has no control over who or what is observed.
Id.
at 350. Thus, a controlled experiment is precluded, and the investigator should attempt to control for “potentially confounding variables,” such as socioeconomic status, education, or worsening economic conditions.
Id.
at 351. A confounding variable is one that is correlated with both the dependent and independent variables, making it difficult to discern which variable has caused the effect in the dependent variable.
Id.
at 348. Without collecting data on the confounding variable, or controlling for other factors that may influence the outcome, the investigator is unable to draw any conclusions about causation from the associations among variables.
Id.
at 348, 352. When an association is found using different studies, or the same study and different groups, the results of the observational study provide more useful evidence.
Id.
at 351. This is because the other studies control for the possibility that the association is due to some defect in the study itself or a peculiarity among group members.
Id.
Alternatively, an observational study could be useful if the association among variables holds true even when the investigator takes into account, by appropriate statistical techniques such as comparing smaller, homogeneous groups, the effects of
*1096
plausible confounding variables.
Id.
Finally, observational studies may provide useful information when there is also a plausible explanation for the effect of the independent variable. In that case, the causal link does not depend only on the association between the independent and dependent variables.
Id.
at 352. If the explanation for linking the dependent variable’s response to other variables is less plausible, it is possible to conclude that the independent variable being tested is the cause of the response.
Id.
When none of these methods of validating an observational study have been used, experts will tend to disagree about the study’s interpretation.
Id.
Ultimately, deciding whether associations are causal is not a matter of statistics, but of good scientific judgment.
Id.
If the data comes from an observational study, the court should inquire about how the units that were studied were formed, whether they are comparable, what are, and what are the factors correlated with, the independent variables, what adjustments were made to account for those factors, and were those adjustments sensible.
Id.
Only with satisfactory responses to these inquiries can a court be sure of the reliability of statistical evidence from observational studies in proving causation.
D. ANALYSIS
Plaintiffs offering scientific or technical evidence have the burden of establishing the qualifications of the experts, the reliability of their testimony, its relevance, and its usefulness to the jury.
Daubert,
509 U.S. at 587 n. 10, 113 S.Ct. 2786 (citing
Bourjaily v. United States,
483 U.S. 171, 175-76 , 107 S.Ct. 2775 , 97 L.Ed.2d 144 (1987)). The defendants have challenged the admissibility of a report and testimony from Dr. Richard Wertheimer (“Wertheimer”), a labor economist that plaintiffs plan to offer as an expert witness, under the
Daubert
standards. According to the defendants, Wertheimer’s statistical analyses are flawed to the point of inadmissibility, in part because he combined all managers at ASI, regardless of job function, experience, education, or skills, when measuring the number of older workers that were selected for termination relative to the number of younger ones selected. By doing so, defendants argue, he treated non-fungible managers as interchangeable, possibly skewing the results. In addition, defendants assert that Wertheimer failed to control for any variable other than age in his statistical study, he compared the ASI workforce to a dissimilar “U.S. Workforce,” and he varied the methods used to achieve the results his clients sought.
However, plaintiffs have strongly disagreed with defendants about whether Wer-theimer improperly aggregated statistics about non-fungible managers at ASI. According to the plaintiffs, this type of challenge goes to the probative value of the statistical evidence, not its admissibility. They argue that because part of their ADEA claims depend on proof that a pattern or practice of age discrimination was present, Wertheimer’s pooling of all the CRESP
2
selection process results provides probative evidence on that issue.
In addition, defendants claim that Wer-theimer’s subsequent report, filed within thirty days of their experts’ reports, was “unauthorized” because it violated the terms of the case management plan and Fed. R.Civ.P. 26(a)(2)(C). According to the defendants, this report contains new opinions based on evidence that was in the possession of the plaintiffs at the time of the original report. The new report includes analyses of selection rates based on salary grades and vice-presidential groups in support of plaintiffs’ contention that the gross disparities in selection rates between those over and those under forty occur even when you look at subgroups.
3
See
Pis.’ Ex. 57, Wertheimer’s Rebuttal Report. Wertheimer’s rebuttal re
*1097
port was filed on May 2,1996, more than one year after his initial report. Defendants object to consideration of this report because it came after the final date listed in the case management plan for expert witness discovery.
4
However, the rebuttal report was filed within days of the last expert discovery deposition, and more than thirty days before defendants’ deadline for fifing dispositive motions. It appears to be a response to challenges raised by defendants’ experts regarding Wertheimer’s initial report. The Court can discern no prejudice to defendants from the fifing of this rebuttal report.
According to the defendants, the second report is also unreliable in that it contains most of the same flaws as the original.
5
Chief among them is the failure, again, to analyze the data in terms of the actual facts relating to the process used to select employees for termination. Secondarily, Wertheimer formed sub-groups for this report that bear no relationship to the CRESP process. A hint of this fact is revealed in a footnote in the rebuttal report relating to the slot machine hypothetical, in which Wertheimer admits that “the situation is more complex than what has been presented because the ASI managerial workforce is not evenly split between younger and older employees.” Pis.’ Ex. 57, Wertheimer Rebuttal at 2, n.4. In fact, prior to the resizing, workers at least age forty or more comprised 58.1% of ASI’s workforce, while those under age forty constituted 41.9%. Defs.’ App. 104, McCabe Report. The difference in age composition of the workforce and among the various CRESP groups was not accounted for in Wertheimer’s analyses of the effects of the resizing. In addition, Wertheimer included all of the employees who had volunteered to take early retirement among those described as “selected.” As noted below, the Court finds this departure from the facts to be unsupported by sound scientific principles.
Plaintiffs have conceded the “limited value” of the profile of the U.S. managerial workforce. Pis.’ Mem. In Oppos. To Defs.’ Mot. To Strike Testimony of Expert Witness at 21. As defendants had noted, that- comparison group was not sufficiently controlled for factors that would make it actually comparable to the management workforce at ASI.
6
In addition, the plaintiffs admit that
*1098
their expert did not consider all of the possible variables affecting who was selected for termination.
Id.
However, they argue that they need only show a pattern of discrimination, and the burden shifts to the defendants to show that the “statistical disparity is due to a non-discriminatory variable or variables that plaintiffs failed to consider.” Pis.’ Mem. in Oppos. to Mot. to Strike at 22. In response, defendants argue that plaintiffs are attempting to shift their burden at the admissibility stage to them. This Court agrees.
In essence, plaintiffs are describing use of the
McDonnell Douglas
burden-shifting method of proof, which is not employed when determining the reliability of an expert’s report.
7
Instead, reliability is founded on whether the expert is qualified and will testify to reliable scientific knowledge that is helpful to the trier of fact. Moreover, by framing the issue in terms of whether their expert must consider “all of the possible variables,” the plaintiffs overlook the possibility that their expert may have failed to consider one of the major factors causing the disparity.
See Bazemore v. Friday,
478 U.S. 385 , 106 S.Ct. 3000 , 92 L.Ed.2d 315 (1986)
(per
curiam) (reversing lower court finding that plaintiff’s statistical analyses were erroneous because they omitted information about differences caused by geographic location). In
Bazemore ,
the Court said that an analysis that included less than “all measurable variables” may still prove a plaintiffs case.
Id.
at 400 , 106 S.Ct. 3000 . However, to be considered acceptable as evidence of discrimination the analysis must account “for the major factors” affecting the results.
Id.
Citing
Bazemore ,
the plaintiffs argue that any-failure to include variables in a statistical analysis goes to its weight, not its admissibility.
Id.
Nevertheless, the Supreme Court noted that an analysis can be so incomplete that it is inadmissible as irrelevant.
Id.
n. 10. To determine if the analysis can carry the plaintiffs ultimate burden of proof a court must consider the factual context of the case, in light of all the evidence presented.
Id.
Despite the plaintiffs’ contention, the defendants did not argue that plaintiffs’ expert must account for all of the possible variables before his statistics would be meaningful. Instead, defendants asserted that major factors had been overlooked, such as, the non-fungibility of the managers, or the unique characteristics of the CRESP process that affected selection. If such omissions render the analysis incomplete, then Wertheimer’s testimony would be inadmissible. With that understanding, the Court now turns to an evaluation of the proffered statistics in the context of the facts of this case.
Statistical evidence may prove discrimination when it shows a pattern of conduct against a protected group that, if unrebutted, would allow the inference of intentional discrimination against individual members.
Barnes v. GenCorp, Inc.,
896 F.2d 1457, 1466 (6th Cir.),
cert. den.,
498 U.S. 878 , 111 S.Ct. 211 , 112 L.Ed.2d 171 (1990). The statistics, however, must show a “significant disparity” and must eliminate the “most common nondiscriminatory explanations for the disparity.”
Id.
They must also bear a logical connection to the facts and circumstances being analyzed.
See O’Connor,
116 S.Ct. at 1310 ;
Coser v. Moore,
739 F.2d 746, 751 (2nd Cir.1984). The
Barnes
court indicated that the most
*1099
obvious explanations for a statistical disparity in termination decisions are random chance or lower proficiency.
Barnes,
896 F.2d at 1466 . However, the facts and circumstances of any given case will influence what constitutes an obvious explanation, or the major factors.
The statistics offered by the plaintiffs have only eliminated random chance as a possible explanation for the disparities.
See
Pls.’ Ex. 56, Wertheimer Report at 8, ¶¶ 14,16, 20-22, 28; Defs.’ App. 108, Rothman Report at 4;
see also EEOC v. Sears Roebuck & Co.
889 F.2d 302 , 323 n. 20 (7th Cir.1988) (standard deviation and other measures of statistical significance merely attempt to eliminate chance as reason for results, do not prove causation). That method would be valid if it is reasonable to assume that the job skills the defendants needed to retain were equally distributed across age groups.
See Barnes,
896 F.2d at 1466 . If it is not reasonable so to assume, a defendant can show that the statistical method is faulty, or that chance does explain the discrepancy, and the statistical evidence may lose its effectiveness altogether.
Id.
at 1469 . If it is reasonable, the statistical evidence that shows a greater number of terminations among certain age groups than would be expected due to chance, may state a prima facie case for age discrimination.
Id.
In
Barnes,
the court allowed the plaintiffs to use such statistical evidence to satisfy their prima facie case of age discrimination, but found those same statistics insufficient to prove that the defendants’ proffered legitimate explanation was a pretext.
Id.
at 1468-69 (statistics cannot determine whether the more likely cause of the disparity was defendants’ bias or a legitimate selection criterion). The court noted that when it appears that job skills are not evenly distributed across age groups, such statistics become much less probative.
Id.
at 1468. In the context of determining the reliability of proffered statistical evidence, the proponent has the burden of showing the reasonableness and validity of the expert’s assumptions.
See Daubert v. Merrell Dow Pharm., Inc.,
43 F.3d 1311 , 1316 (9th Cir.),
cert. den.,
516 U.S. 869 , 116 S.Ct. 189 , 133 L.Ed.2d 126 (1995) (party presenting expert must show that expert’s findings are based on sound scientific method). Wertheimer’s analyses assumed that the job skills to be retained were equally distributed across age groups. Plaintiffs argue that ASI treated its management workforce as fungible, so it was proper for their expert to do so as well.
In a class action pattern or practice claim of age discrimination, a plaintiff must show that the “regular policy of the employer” was to discriminate on the basis of the protected trait.
Coates,
756 F.2d at 532 . The plaintiffs prima facie case often consists of statistical evidence showing a significant disparity between the employment decisions made regarding members of the protected group, and those made as to younger workers.
Id.
The statistics, however, will usually be “buttressed by evidence of general policies or specific instances of discrimination.”
Id.
The focus is on whether there has been an overall pattern of discriminatory decision-making.
Id.
That pattern may be defeated, despite any amount of statistical evidence, if the defendant articulates sufficient nondiscriminatory reasons for each separate discharge.
Id.
If, however, the defendant only explains the discharges of the named plaintiffs or class representatives, the pattern or practice claim does not necessarily fail.
Id.
at 533 . When strong statistical evidence establishes the prima facie case, a defendant’s successful rebuttal of each particular decision to discharge weakens, but does not defeat, the class claim.
Id.
On the other hand, with respect to individual claims only, a defendant’s showing that a discharge was based on a neutral assessment of the particular plaintiffs skills in relation to those of other employees, will defeat the claim.
Id.
The statistics proffered by the plaintiffs here are offered in support of both the pattern or practice claim and each individual plaintiff’s claims.
Turning to the report in controversy, the Court notes that in the conclusion of his report, Wertheimer states that in his professional opinion all of the evidence is consistent with the “1992-1993 Workforce Resizing Program treating employees at least age 40 differently from employees under age 40.” Pls.’ Ex. 56, Wertheimer Report at 25. He supports this conclusion with
*1100
his finding that ASI management employees at least fifty or more years of age are “significantly underrepresented” in relation to a “comparison group” of United States workers. The plaintiffs have already conceded the “limited value” of this comparison, and the Court sees no reason to further examine it.
See Hazelwood,
433 U.S. at 308, 97 S.Ct. 2736 (dealing with issue of proper comparative groupings for purposes of determining from overall statistics whether an employer is discriminating). That is because, even if it were supported, Wertheimer’s conclusion does not allow a finding of intentional discrimination by the defendants. Instead, it could only support a finding that the resizing program may have had a disparate impact on older workers. Such a finding says little about the defendants’ intent.
Even in a pattern or practice discrimination case, a plaintiff must still prove discriminatory intent.
Chicago Miniature,
947 F.2d at 298 . Intent means more than knowledge that a certain action will cause discriminatory results.
Id.
at 297 . It means a subjective desire or wish for that result.
Id.
Here, the plaintiffs attempt to prove the defendants’ wrongful intent with statistical evidence of a disparate impact from which they want the factfinder to infer an intent to discriminate.
Cf. Id.
(prima facie case can be established by statistical evidence ... buttressed by general policies or specific instances).
For this to occur, several inferential steps must be taken, and each one of them must be reasonable in light of the evidence.
See Salus v. G.T.E. Direct. Serv. Corp.,
104 F.3d 131, 137 (7th Cir.1997) (reasonableness of inference questioned, but not considered clear error). The first step would be a finding that the resizing program in fact had a disparate impact on older workers, which would require the finders of fact to choose which expert’s testimony and reports to accept as true. The Court’s task here is to determine whether it is proper to put them to that choice. Next, the factfinder would have to conclude that the impact occurred because the selection process was tainted, either by the actions of the individual decisionmakers, or by some systemic defect, such as a criterion designed to target the older workers. Yet, the factfinder would also have to attribute the taint in the selection process to a conscious and deliberate choice by the defendants.
See Chicago Miniature,
947 F.2d at 297 (intent means a subjective desire or wish). If the statistical evidence does not relate in some meaningful way to these steps, it will not be useful to the jury.
Wertheimer found that the “termination process selected a significantly higher fraction of employees at least age 40 than of employees under age 40 at each stage of the process.” Pis.’ Ex. 56, Wertheimer Report at 25. Specifically, he noted that the termination rates “generally rose with age,” which means his study found an association between the dependent variable of termination rates, and the independent variable of age. Again, for this association to support a finding of discriminatory intent, a factfinder would have to determine that the termination process was purposefully designed to achieve that result.
The termination rate is the number of terminated employees belonging to an age category divided by the number of workers in that age category before the terminations.
Id.
at 7, ¶¶ 11, 14. Essentially that figure represents the percentage of employees in a given age category that were terminated. Once Wertheimer calculated these percentages for all employees at least age 40 or more and for all employees less than age 40, he contrasted the percentages and found them “highly statistically significant,” because the probability of these results occurring by chance was .009%, using a two-tailed test.
Id.
That equates with a 2.61 standard deviation,
8
or less than a one in a million
*1101
chance of it occurring by random chance.
Id.
According to Wertheimer, this difference is highly statistically significant.
However, Wertheimer’s analysis fails to account for any other independent variable that might explain the association between age and termination rates, including job skills, education, experience, or self-selection. For an ADEA claim, in a work force resizing or restructuring context that includes an early retirement incentive, it is imperative that the analysis take these “unusual circumstances” into account.
See Hartley,
124 F.3d at 889 . Because Wertheimer’s failure to do so is a departure from generally accepted methods in the field of statistical analysis, it must be shown to be grounded in “demonstrable and scrupulous adherence to the scientist’s creed of meticulous and objective inquiry.” Bra
un,
84 F.3d at 235 . In other words, he must have a scientifically-based reason for departing from the customary method of statistical analysis.
Instead, Wertheimer has explained his procedures by stating that he used information provided by the plaintiffs’ counsel about the characteristics of the workforce he studied. He admitted to a lack of familiarity with the actual process used for the involuntary terminations.
See
Def.App. 118, Wer-theimer Dep. at 160-62, 218, 238. In fact, when questioned about the source of information on which he based his judgment, Wertheimer stated that he relied on “information that was conveyed to [him] by [plaintiffs’ counsel] ... [who] gave [Wertheimer] ... an impressionistic view of [the process]. But it certainly wasn’t a detailed or specific view of this process.”
Id.
at 161-62. He also admitted that he did not know what criteria were used in Stage I of the process.
Id.
at 165. Moreover, Wertheimer disregarded the defendants’ classification of certain employees as voluntary terminees, without an explanation for having done so.
9
Pis.’ Ex. 56, Wertheimer’s Report at 9, ¶ 19. The Court does not find this to be an adequate explanation for Wertheimer’s departure from generally accepted statistical procedures.
See Robinson v. PPG Indus., Inc.,
23 F.3d 1159, 1163 (7th Cir.1994) (“Truly voluntary retirements do not give rise to an inference of age discrimination.”). Thus, to the extent his testimony relates to a comparison of overall selection and termination rates for those employees aged forty and above, and those under forty, it should not be admitted.
The same problem weakens Wer-theimer’s analysis of
selection
rates. Wer-theimer concluded that the rate at which employees were selected for possible termination (selection rate) was higher for employees at least age forty than the rate for employees less than forty. Pis.’ Ex.- 56, Wertheimer’s Report at 25, ¶ 28(d). As noted, this analysis included those employees who may have been selected, but who took a voluntary early retirement package.
Id.
at 9, ¶ 19. He found the selection rates to be as follows: aged forty or more, 16.5%, under age. forty, 10.9%. The disparity between the two rates was equivalent to 6.68 standard deviations, which Wertheimer found to be “highly statistically significant.” Although he has not adequately explained his reason for doing so, Wertheimer considered the em
*1102
ployees who took early retirement to be “involuntarily terminated,” rather than self-selectors. Pis.’ Ex. 56, Wertheimer Report, at 9, ¶ 19. The Court has found this to be a departure from generally accepted methods of scientific inquiry, and will not admit evidence about selection rates that ignores the factor of self-selection.
Wertheimer’s report provides an indication of this factor’s effect on the results. When the termination rates (instead of selection rates) of employees aged forty or more are compared with those for under age forty, the disparity diminishes significantly. The termination rate for employees who were at least forty was 11.7%, while the rate for those less than forty was 9.7%. Pis.’ Ex. 56, Report at 25, ¶ 28(b). That reflects a difference of 2%, or 2.61 standard deviations, which Wertheimer also found to be “highly statistically significant.”
Id.;
Report, Table D-5. According to defendants’ expert, because the workforce resizing program used two simultaneous methods to reduce the number of managers, a voluntary and an involuntary one, the statistical analysis should present the results of each method separately. Defs.’ App. 104, “Analysis of Employment Data for Ameritech Services, Inc.” by George P. McCabe, Ph.D. (“McCabe Report”) at 12. The voluntary method included an early retirement package with incentives, and the involuntary method used the CRESP termination process.
Id.
The percent of total terminated employees who were aged forty or more was 62.6%, while the percent of terminees under age forty was 37.4%.
Id.
at 8, ¶ 15. When compared to the proportion of employees prior to the resizing program that were aged forty or more, 58.9%, and those under forty, 41.9%, the two sets of numbers do not appear very different to the untrained eye. Nevertheless, they are different, and the plaintiffs say they demonstrate that a higher number of employees under age forty were left in the workforce after the resizing than were there before the resizing. Conversely, a lower number of employees aged forty or more were left in the workforce after the resizing.
The plaintiffs basically offer those statistics, and various permutations and computations related to those figures, as support for a finding that the defendants had a regular and ongoing policy of treating employees aged forty or more less favorably than it treated those under age forty. In essence, by showing a disparate impact the plaintiffs seek to elicit a finding of deliberate and intentional discrimination because of age. The problem with this strategy is that the statistics do not reveal the cause of the disparity, and when only disparate treatment is available
to prove
discrimination, the analysis of causation is crucial.
Given Wertheimer’s admission that he did not know much about the process used by ASI to resize its workforce, or about the criteria used for selecting terminees, and that he assumed that all of the 6,695 managers involved in the CRESP process were interchangeable, the Court is not comfortable relying on the results of his statistical analy-ses. His departures from generally accepted scientific methodology, coupled with the absence of a scientifically-based reason for such departures, do not provide satisfactory indi-ces of reliability for Wertheimer’s statistical analyses. In addition, his proposed testimony in this case does not appear to be about “matters growing naturally and directly out of research [he] has conducted independent of the litigation.”
See Daubert,
43 F.3d at 1317 (on remand from the Supreme Court). That means that plaintiffs must come up with other “objective, verifiable evidence” that his proposed testimony is based on “scientifically valid principles.”
Id.
at 1318.
To accomplish this, a plaintiff could show that the methods and conclusions reached have been subjected to peer review, or published in a “generally-recognized scientific journal that conditions publication on a bona fide process of peer review.”
Id.
If these methods are unavailable, the plaintiff may try to satisfy the inquiry with testimony from the proposed expert, explaining precisely how he reached his conclusions and pointing to some objective source to show that he followed the scientific method as it is practiced in his field.
Id.
at 1319. Other methods of demonstrating the reliability of the scientific evidence include providing evidence of the known and potential rate of error, or about the “general acceptance” of the theory or technique.
Daubert,
509 U.S. at 593-94 , 113 S.Ct. 2786 .
*1103
Rather than provide the Court with any of these indices of reliability of their expert’s testimony, the plaintiffs have argued that the motions to strike their experts’ testimony should not have the effect of excluding the evidence as long as it raises a triable issue. In essence, plaintiffs ask the Court to assume the admissibility of the experts’ testimony and proceed to determine whether it is sufficient to create a genuine issue of material fact. The Court will not assume admissibility of any piece of evidence offered by a party in support of or opposition to a motion for summary judgment. To do so would violate the court’s clear duty under Rule 56.
10
Next, the plaintiffs offer the general proposition that the federal rules of evidence favor admissibility, and that Rule 702 was designed to remove the common law barriers to opinion testimony. They also contend that
Daubert
expanded the scope of admissible opinions. After citing Rules 401, 402 and 403, and their limitations on admissibility, the plaintiffs note that expert witnesses are allowed to offer opinions that are not based on “first-hand knowledge or observation.” While not specifically stating so, the plaintiffs appear to be suggesting that their witness meets all of these criteria for admissibility, and that it is permissible for him to testify based on information provided to him by plaintiffs’ counsel. That may be true, but for the expert’s testimony to be reliable and useful,' the information provided must be an accurate reflection of the real world events the expert is helping to interpret. If not, the court may “conclude that there is simply too great an analytical gap between the data and the opinion proffered.”
Joiner,
— U.S. —, —, 118 S.Ct. 512, 519 , 139 L.Ed.2d 508 (1997). Nothing in plaintiffs’ argument persuades the Court to abandon admissibility analysis, which is focused in part on the gap between the data and Wertheimer’s opinion.
Trying another tactic, the plaintiffs argue that the defendants are confusing admissibility with probative value, and as long as their expert’s evidence meets “minimal standards of 'reliability” it would be error for the court to exclude it. In doing so, the Court would be substituting its judgment for that of the jury. This Court cannot agree. The standards of reliability have been thoroughly set forth and applied in this order, and the Court is satisfied that its decision to exclude Wertheimer’s proffered evidence as unreliable and not helpful is amply supported. However, even if the proposed testimony were sufficiently reliable to be admissible, it would be unlikely to survive a Rule 403 balancing test. The Court has found deficiencies that not only weaken the proposed evidence to the point of being unreliable and inadmissible under
Daubert,
but that would also render it so lacking in probative weight that it would fail to offset the substantial risk of prejudice, or of misleading or confusing the jury, that accompanies such evidence. Because expert testimony “can be both powerful and quite misleading,” judges considering the limitations in Rule 403 “exercise more control over experts than over lay witnesses.”
See Daubert,
509 U.S. at 595 , 113 S.Ct. 2786 .
Finally, the plaintiffs argue that pattern or practice cases require proof that, a large number of events are linked by a clear pattern of favoring one group over another, in a large number of decisions. With large groups, it is unlikely that a discernable pattern can be attributed to mere chance, so statistics such as the plaintiffs offer, that measure the probability that an observed pattern could be attributed to chance, would provide relevant evidence. Again, the plaintiffs have used a generalization to attempt to prove a specific case.
11
It will not work. If
*1104
the statistics have failed to account for major factors that may explain any possible pattern of disparate impact, they will not provide a valid, reliable, or useful measure of what actually happened. That is what the Court has found to be the case here. Defendants’ expert has provided the court with an analysis that accounts for the missing factors from Wertheimer’s study because it has analyzed the actual CRESP groups, in terms of the ages of those who were terminated, and found that out of 122 CRESP ranking groups, only five have statistically significant differences in selection rates, with the rate for those under the age of forty found to be less than the rate for those age forty and over. Defs.’ App. 104, McCabe Report at 15, C2-21 to C2-26, C3-4.
Nor can plaintiffs show the reliability of Wertheimer’s methods by pointing to some independent research out of which those methods emerged. According to his curriculum vitae, Wertheimer has a Ph.D. in economics, and has worked as a researcher for The Urban Institute, where he spent fourteen years directing complex research projects that involved testing, validating, and applying state-of-the-art econometrics and demographic forecasting models. Pis.’ Ex. 60. He has also performed research for DRI/McGraw-Hill, which included projects such as analyzing wages in the health sector in comparison to those of other comparable workers, forecasting mail volume for the United States Postal Service, some unspecified work that focused on “market size, growth, and share issues,” and labor “arbitration and demographic analysis and forecasting.”
Id.
His recent publications range from a report on the cost-benefit analysis of the Javits-Wagner-O’Day Program, submitted to the National Industries for the Blind in August, 1995, to a report on the “Distributional Impacts of Raising Federal Excise Taxes,” submitted to the National Chamber Foundation in November 1990. Primarily, his publications have been reports or presentations on subjects related to policy issues as requested by the clients for whom he has worked.
Id.
There is no evidence of independent research out of which the current statistical analysis has grown, and there have been few, if any, articles that were submitted to peer review journals.
By comparison, defendants’ expert has a Ph.D. in mathematical statistics from Columbia University, and is currently a professor of statistics and head of statistical consulting at Purdue University. Defs.’ App. 104, app. D, McCabe Curriculum Vitae. He has taught at Purdue since 1970, and during that time he has served as a visiting professor of statistics at the University of Berne, in Switzerland, and at Princeton University.
Id.
In 1995, he served as a guest researcher at the National Institute of Standards and Technology.
Id.
McCabe has served as an Associate Editor for
Computational Statistics and Data 'Analysis
since 1982, and he is a member of the Management Committee for the
Journal of Educational and Behavioral Statistics. Id.
From 1978 to 1986 he was an Associate Editor for
Technometrics. Id.
His research interests include applied statistics, mathematical statistics, statistical computing and statistics and the law.
McCabe is the author, with David Moore, of the textbook, Introduction to the Practice of Statistics, currently in its second edition.
Id.
He is also the author, or coauthor, of more than 100 publications, with recent ones ranging from a 1991 article, “Optimal Sample Allocation for Normal Discrimination and Logistic Regression under Stratified Sampling,” published in the
Journal of the American Statistical Association,
to “Vitamin B6 Status of Egyptian Mothers: Relation to Infant Behavior and Maternal Infant Interaction,” published in the
American Journal of Clinical Nutrition
in 1990. As of March 1996, he had nineteen articles submitted for publication, three of which had been accepted.
Id.
Of his most recent research, the Court notes that he has written about proper sample sizes, instrument reliability, power as a function of reliability, probabilistic fatigue analysis of multiple site damage, evaluating the efficiency of blocking without assuming compound symmetry, and interpreting blocks and random factors.
Id.
The
*1105
latter two projects were published in the
Journal of the American Statistical Association. Id.
Of further interest is the fact that he has written an article on “Regression Analysis as Statistical Evidence,” which appeared in a 1986 issue of
Statistical Evidence of Discrimination.
In terms of whether the experts’ proffered statistical analyses were a natural outgrowth of their independent research, Wertheimer and McCabe are not comparable. Wertheimer does not appear to meet that criterion, for none of his recent work appears to have required him to. construct a statistical model based on data he had to understand and interpret in context, and then analyze that data in a meaningful way to accurately determine the cause and effect relationships among various factors. Instead, his work appears to have involved describing a current or proposed situation and, using economics methods, forecasting what that means for the future of some industry, policy, or agency.
Neither are Wertheimer’s methods and principles reliable for having been published in peer reviewed journals. Almost without exception, his publications have been directed at social, financial, political and business publications, agencies or organizations.
12
Without these two objective indices of reliability to support the scientific validity of Wertheimer’s work and methods, the plaintiffs must resort to other means, such as testimony from Wertheimer explaining how he reached his conclusions and pointing to some objective source to show that he followed valid scientific methods. Unfortunately, Wer-theimer’s explanations are deficient, and the sources of his information are not objective. For example, in the section analyzing the termination process at ASI, Wertheimer did not describe the process at all, instead indicating in a footnote that he was “asked to assume by plaintiffs attorney that [a given report] was the most authoritative report available on the 1992 termination rates.” Pis.’ Ex. 56, Report at 7, n.7.
Plaintiffs maintain that Wertheimer’s method of aggregating a large number of decisions, that were made during a resizing program with which he was unfamiliar, is valid because those decisions are linked by a “clear pattern of favoring one group over another.” In a way, that is like saying the results of the study validate the method used. However, simply asserting the validity of the methods used does not make them so.
See Mid-State,
877 F.2d at 1340 . The fact that Wertheimer declares his methods proper, without providing the Court with a satisfactory explanation for his failure to test the validity of his hypothesis against the actual characteristics and process of the resizing program, is akin to an extrapolation from existing data that is connected only by the expert’s bare assertion.
See Joiner,
118 S.Ct. at 517 . At best, Wertheimer’s statistics may suggest a somewhat disparate impact on older workers, but not a clear pattern of favoring one group over another, which is a value-laden and subjective assertion. As the Court has already found, the statistical anal-yses performed by Wertheimer are deficient in that they do not accurately reflect what actually occurred.
See Daubert,
509 U.S. at 591 , 113 S.Ct. 2786 (fit is not always obvious, and scientific validity for one purpose is not necessarily true for another).
Another problem with these statistics is, even if they could be found to show that older workers were more likely to be selected than younger workers, they do not demonstrate that the difference was “because of’ their age. The ADEA does not prohibit an employer from taking actions that have a disparate impact on older workers.
See
29 U.S.C. § 623 (f)(1). Consequently, the plaintiffs’ proof must show the existence of the prohibited intent to discriminate on the basis of age, that is, causation. For statistics to accomplish this they must show a significant disparity and eliminate the most common non-discriminatory reasons for the disparity.
See Barnes,
896 F.2d at 1466 . In a class pattern or practice case, a plaintiff usually must supplement statistics with evidence of general policies or specific instances of discrimination.
Coates,
756 F.2d at 532 . However, the plaintiffs’ statistics do not address
*1106
other possible causes of the termination disparities, nor is there any evidence that older workers were subjected to greater or more intense scrutiny than younger workers, or had less of an opportunity to be retained. The standards and criteria that were applied to both older and younger workers were facially neutral, and no evidence exists that their application was inconsistent.
Although Wertheimer’s analyses show that older workers tended to be terminated at higher rates than younger workers, that “fact” is only probative if the issue is disparate impact.
See Noreuil v. Peabody Coal Co.,
96 F.3d 254, 259 (7th Cir.1996) (disparate impact theory requires statistical correlation evidence showing that specific employment practice has disproportionately negative effect on members of protected group). The crucial issue under the ADEA is what caused the difference. Wertheimer admits that it can be perilous to draw conclusions from average percentages or rates based on aggregate categorical data, without knowing more about the specific situation. Defs.’ App. 118, Wertheimer Dep. at 28. In response to a hypothetical describing a company downsizing with characteristics very similar to those deféndants maintain existed in their resizing, Wertheimer agrees that it could be misleading to simply compare overall termination rates by age, without considering the separate job categories, and the number of people and age mixtures in each category.
Id.
at 29.
Interestingly, he indicates that he would “need to know more about the circumstances in order to ... be able to decide what degree of breakdown was appropriate.”
Id.
If the individuals being studied are fungible, or interchangeable, then it is not necessary to divide the population into groups.
Id.
at 32. He also admits that unless a person knows that the population is basically fungible, he or she would not know what an overall average selection rate really means.
Id.
He quickly follows that admission with, “but it was my understanding from plaintiffs’ attorney that the overwhelming majority of the employees, these management employees, they were concentrated in relatively low-level management ... that their skills were general business skills, and that there was not a large difference in the skill sets of these people.”
Id.
at 32-33. Thus, he thought it appropriate to treat the managers at ASI
13
as fungible or readily interchangeable, “so they constituted homogeneous units for [him] to work with.”
Id.
at 33-34. Wertheimer had received no study or written report confirming this status of the entire group of managers, and he knew that the group consisted of approximately 6,600 people.
Id.
at 34.
Wertheimer also admits that he knew about the sorting of managers into CRESP groups, which he understood to be groups of managers with a set of similar skills, but he did not think these sub-groups needed separate analysis.
Id.
at 35. This conclusion was also based on what plaintiffs’ counsel had told him.
Id.
He was told that the CRESP groups were formed based on comparable skills, but not based on different job functions.
Id.
at 37. Consequently, he combined all of the managers as a “single universe of fungible units” when conducting his analysis.
Id.
By implication from his testimony, Wer-theimer’s statistical method would produce misleading results if the employees in the various CRESP groups that he aggregated were in fact dissimilar in terms of job functions, experience, performance and education.
See id.
at 38-41. With reference to a “company downsizing hypothetical” given to him during his deposition, in which the overall selection rate for those forty and over was 29%, and the overall rate for those under forty was 22%, Wertheimer said the overall or general average selection rate did not accurately reflect what was happening in the different categories.
Id.
That is because
*1107
the number of selected workers who were forty or more exceeded the number who were less than forty in seven of the eight different functional categories in the hypothetical. In fact, Wertheimer specifically stated that in a situation such as this hypothetical, the first question to ask is whether it is appropriate to make a comparison between the two age groups in the aggregate.
Id.
at 40. If the job functions are distinctly different, for example, clerical workers, engineers, truck drivers and lawyers, then it would not be appropriate to combine them for purposes of comparing selection rates based on age.
Id.
Thus, if defendants can show that the ASI managers were not interchangeable, then plaintiffs’ expert witness has invalidated his own statistical studies.
Defendants have made such a showing. Their proof, especially the CRESP Training Manual, shows that every effort was made to create homogeneous groups of employees who would be ranked in relation to each other. Further, that document is supported by Morris’ testimony about the goals for the CRESP groupings, and that of many other managers and department heads.
See
Defs.’ App. 75, Catlow Aff. (age 45);
14
App. 76, Fulmer Aff. (age 55); App. 77, Hauf Aff. (age 44); App. 78, Kledzik Aff. (age 44); App. 79, Kreucher Aff. (age 46); App. 80, Kuczmanski Aff. (age 50); App. 81, LaCrosse Aff. (age 47); App. 82, Little Aff. (age 46); App. 83, Lockwood Aff. (age 48); App. 85, Luby Aff. (age 56); App. 87, Peters Aff. (age 57); 88, Porento Aff. (age 44); App. 89, Resler Aff. (age 47); App. 90, Sappenfield Aff. (age 42); App. 91, Smith Aff. (1st female, age 38); App. 92, Vaughn Aff. (age 45); App. 93, Goetz Dep. at 71; App. 98, Morris Dep. at 99-105. The only thing the plaintiffs have offered to rebut this proof is their statistical evidence, along with evidence that certain CRESP groups contained managers with different salary grades or job functions, and that, at some earlier time, managers had been transferred from one department to another.
See
Pis.’ Mem. In Opp’n To Defs.’ Mot. To Strike at 7-8, citing: Defs.’ App. 104, McCabe Report at 1-12; Pis.’ Ex. 134A; Pis.’ Ex. 8; Pis.’ Ex. 130, Langford Dep. at 147-48.
Plaintiffs’ evidence suffers from several deficiencies. First, the statistical evidence is not relevant to the issue of determining the significance of the composition of the CRESP groups, and cannot create a genuine issue of material fact on this issue. Because Wer-theimer’s statistical analysis was conducted without regard to the actual reasons for dividing employees into CRESP groups, and because of his relative unfamiliarity with the process used for selection, the statistical evidence does not enlighten the Court about whether it was appropriate to consider all managers interchangeable. Nor could evidence that one CRESP group included both a secretary and the director of usage pricing, Richard Langford (“Langford”), suffice to discredit defendants’ evidence of attempted homogeneity. Neither does it show that the defendants did not genuinely believe, and act as if, the CRESP groups were homogeneous.
Some examples will further demonstrate the deficiencies of plaintiffs’ evidence. Plaintiffs refer to the June 1992 Work Elimination Task Force (“Task Force” or “Ligett Task Force”), headed by Robert Ligett, as evidence that ASI initially planned to eliminate job functions, then changed course to eliminate people. According to plaintiffs, Ligett said that ASI eliminated people, but not necessarily the
work
the Task Force had identified. However, upon review of the designated pages of Ligett’s deposition, the Court cannot discern any such statement.
See
Pis.’ Ex. 53, Ligett Dep. at 165-66. Rather, the testimony on those pages relates to a question from the previous page, which was not supplied, and the following response from Ligett:
Well, I mean, Lee’s comments about trends, in these kind of categories. I mean, we were looking at work, this relates to categories. I mean, this wouldn’t have been helpful to us in doing our task.
Pis.’ Ex. 53, Ligett Dep. at 165. Earlier in the deposition, Ligett had recalled that he had served both as. the head of the Task Force and as a ranker in the resizing program.
See
Pis.’ Ex. 53, Ligett Dep. at 134-35. Consequently, it is not clear from the
*1108
above-referenced statement in which capacity he was speaking. In fact, in his earlier testimony, Ligett specifically stated that the Workforce Resizing Program was a partial implementation of the recommendations of the Task Force.
Id.
at 136 .
Another example of facts intended to support the notion that the resizing was not related to the workforce elimination task force is equally unavailing. Plaintiffs state that Langford was terminated even though he worked in a position that was “probably not” identified for reduction. Pls.’s Brf. In Oppos. To Mot. To Strike at 7. Their support for this statement is that, after briefly reviewing a list handed to him during his deposition, Ligett stated that it appeared the function performed by Langford was not on the list, meaning it was likely not among the recommendations for cutbacks. Pis.’ Ex. 53, Ligett Dep. at 171-72. However, Ligett proceeded to recall that he had been one of the people who spoke about Langford’s work during the ranking session, and he had told the group that he found Langford’s work disappointing.
Id.
at 172 . At no point have the defendants asserted that the resizing program would only affect people who performed work identified by the Task Force as unnecessary, or over staffed. This evidence demonstrates that weak managers were at risk as well, and it does not support an inference that ASI had planned to target only job functions, and then switched to targeting people. Moreover, it gives ample support for any decision relating to Langford.
Other evidence, offered by plaintiffs to support a finding that CRESP groups crossed salary grade and job function lines, consists of a general reference to twelve pages of a report by defendants’ expert, McCabe. However, in none of those pages is found any support for that contention. In fact, McCabe specifically described CRESP groups as “groups of jobs requiring similar skills” within each vice-presidential division. Defs.’ App. 104, McCabe’s Report at 9. He also stated that “in most eases, each of these groups consisted of only one salary grade; but for some, more than one salary grade was grouped together .... ”
Id.
Further, once the initial CRESP grouping was made in Stage I, based on vice presidential division, job function and job skills, the large CRESP groups were sub-divided into smaller ranking groups of approximately thirty employees.
Id.
at 10. In some eases, geographical or other business considerations affected the sub-divisions.
Id.
McCabe’s report simply does not support the contention that CRESP groups were constructed in a random fashion. Rather, it supports the opposite conclusion. There may have been exceptions in certain groups, but they do not disprove the rule.
To bolster the evidence from McCabe’s report, Plaintiffs point to testimony from Langford’s deposition that they claim supports a finding that the CRESP groups crossed functional and salary lines. Lang-ford, who is one of the named plaintiffs, was deposed on April 9 and 10, 1995, and was shown a document (Deposition Ex. 143) during the deposition. Pis.’ Ex. 130, Langford Dep. at 147-48. When asked if he had seen the document before, Langford indicated he had first seen it during the deposition the day before.
Id.
at 146. From the minimal context and foundation provided in the cited deposition pages, this document seems to have been some type of list, perhaps of people in the CRESP group to which Langford was assigned. Langford’s name was on it, as well as names of some people with whom he had worked.' Pis.’ Ex. 130, Langford Dep. at 146-48. According to Langford, he was surprised to find the name of Ligett’s secretary on it.
Id.
at 147. He had assumed the list was for people in his salary grade.
Id.
That was the extent of identification of, and discussion about, this document, which Lang-ford admitted to have seen for the first time the day before. This testimony hardly qualifies as evidence based on personal knowledge, setting forth facts that would be admissible in evidence, and showing affirmatively that Langford is competent to testify to the matter. It is insufficient to support a finding that CRESP groups were formed randomly, without regard to job functions or salary grades.
Other evidence plaintiffs offer in support of their contention about the CRESP groups is equally unavailing. In a further attempt to demonstrate that defendants did not consider the value to the company of the work
*1109
being performed, and, presumably, that they were indifferent to job functions, the plaintiffs point to a newsletter, published by Am-eritech Corp.
See
Pis.’ Ex. 8. However, in the face of the voluminous testimony and evidence about the way CRESP groups were formed, and how the lines were drawn in each CRESP group in relation to the Task Force recommendations, the Court cannot attribute much weight to a corporate newsletter. During the relevant time period, Am-eritech Corp. owned Indiana Bell, as well as the Bell operating companies in Illinois, Michigan, Ohio, and Wisconsin. In turn, these five Bell companies owned ASI. Noteb-aert Dep., p. 210; Reiman Dep., pp. 16-17. There is no evidence to show that the purpose of the newsletter was to explain in detail all of the factors that one of Ameritech Corp.’s many companies would use to make its force reductions. If Ameritech Corp.’ purpose for the article was to genérally describe the resizing process for employees throughout its many companies, then it would follow that the newsletter would have less detailed information that might be specific to a particular company.
Plaintiffs’ citation to the alleged “Kulick Memo,” and their arguments regarding same, are without merit and warrant no further discussion.
15
Finally, the reference to ASI’s historical practice of allowing its managers to move from one department or locality to another, even if true, does not support a finding that the CRESP groups were not intended to be homogenous with respect to job functions and skills. While ASI may have allowed such transfers during the course of a given manager’s career development, the purpose of the resizing was not to assist with career development. The circumstances of the former were not the same as those facing defendants in 1992, when they were reducing the overall size of their workforce to become more competitive. The goal was to operate more efficiently, in an economic sense of the word, with fewer levels of middle managers. It was also to monitor the force reductions so as to avoid endangering customer service, which would jeopardize their competitiveness. To that end, the defendants created their own definition of comparable managers and applied it during the resizing process.
Thus, the CRESP groups were homogeneous in that the managers placed in a given group were thought to share similar skills within job functions that would enable the employer to objectively and fairly evaluate them in relation to others who were similarly situated. The ADEA does not require a company to “establish an interdepartmental transfer program during the course of a RIP.”
Taylor v. Canteen Corp.,
69 F.3d 773, 780 (7th Cir.1995). In other words, ASI was not required to consider all of a given employee’s skills and rank him or her in relation to all positions within the company for which he or she might be qualified. Consequently, defendants’ decision to group managers according to job functions and only rank them within those groupings does not violate the ADEA. Plaintiffs have provided no evidence sufficient to challenge defendants’ description of the CRESP process or groupings.
Nor have they shown that ASI did not genuinely believe, and act as if, the CRESP groups were homogeneous. The process for deciding which employees should be terminated has been adequately explained by the defendants. It was an elaborate and decentralized process for ranking employees with similar job functions, deciding how many employees need to be cut from each functional division, and then determining which, if any, employees should be retained due to special factors, such as unique skills or experience.
See Coser,
739 F.2d at 750 (“Where uncoordinated and independent employment decisions are made by different persons, statistics as to hiring by the overall
*1110
entity may be less significant in demonstrating bias than where a single office makes all employment decisions.”)- Because the plaintiffs have not offered sufficient evidence to create a genuine issue of material fact on the interchangeability of managers, the defendants prevail on that issue. Wertheimer’s testimony about how his statistical analyses depended on the interchangeability of all the managers being studied nullifies his report that assumes that characteristic.
This fact means that plaintiffs’ own expert has discredited plaintiffs’ proffered statistical evidence. The analyses conducted by Wer-theimer may amount to nothing more than adverse impact studies of questionable validity. Further, they offer nothing to show why the resizing affected older workers differently than younger, if in fact it did. The ADEA allows for disparate impact as long as reasonable factors are used to differentiate among workers. For example, if older workers were less skilled in job functions that would be valued more highly in the new competitive environment, or were in fact more complacent and less willing to change, then defendants’ act of weeding them out at a higher rate than younger workers is reasonable and does not violate the ADEA.
In light of these significant deficiencies, the plaintiffs’ statistical evidence appears to be unreliable, in that the expert failed to explain how his methods comport with generally accepted scientific principles, and were the proper methods for conducting a statistical analysis for purposes of supporting a hypothesis about causation. He did not know what actually occurred in the group of individuals he studied, nor did he know that they were dissimilar in ways that mattered in terms of the reasons for the resizing. The statistical evidence is also irrelevant, because it has no tendency to prove a fact that is material to the plaintiffs’ claim.
16
For all of the reasons set forth above, the Court GRANTS defendants’ motion to strike the evidence submitted in support of summary judgment by Wertheimer, and to the extent that their reports depend on Wer-theimer’s analyses, the reports by Marc Bendick, Jr., and Lance Seberhagen. In addition, Seberhagen’s testimony about the disparate impact on older workers of use of the criterion “growth potential” during the downsizing is not only irrelevant, in that it relates to a theory of recovery not available under the ADEA, but is also not helpful to the factfinder. The likelihood of confusing the jury with testimony of an “expert” on the meaning of a phrase, when jurors are capable of discerning that meaning themselves, would be great. It is also highly prejudicial to allow someone bearing the mantle of “expert” to testify about the meaning of a criterion that the defendants had already defined in their training materials. For these reasons also, Seberhagen’s testimony is STRICKEN as irrelevant, unreliable, and not helpful to the factfinder.
II. MOTIONS FOR SUMMARY JUDGMENT
Defendants have moved for summary judgment on both the pattern or practice and the individual claims presented by the plaintiffs. The bulk of plaintiffs’ evidence on the pattern or practice claim consisted of the statistical analyses of their expert, Wertheimer, and the corroborating and supplemental reports by Bendick and Seberhagen. Because the Court has found those experts’ testimony to be unreliable, irrelevant or not sufficiently helpful to the factfinder to admit, plaintiffs are left with little evidence in support of that method of proving discrimination. What remains is to determine whether sufficient additional evidence has been presented to create an issue of material fact in a pattern or practice claim of age discrimination. Likewise, the Court must determine whether sufficient evidence was presented to create a genuine issue of material fact in connection with the individual claims of each named plaintiff. To accomplish these objectives requires a brief discussion of what constitutes sufficient evidence, followed by an evaluation of the plaintiffs’ evidence.
*1111
A. SUFFICIENCY OF EVIDENCE
The Court has found that plaintiffs’ experts could not provide the jury with any assistance by means of their testimony. As noted, the admissibility of any evidence depends on the purpose for which it is being offered. Some of the evidence offered was not relevant, in that it failed to address the actual facts of this ease. Other evidence was relevant to an issue in dispute, but the issue was not material. For example, proof that the CRESP process had a disparate impact on older workers, without more, does not show a pattern or practice of intentional discrimination because of age. The rest of the evidence from plaintiffs’ experts lost out in the Rule 403 balance, because its relatively slight probative value was substantially offset by its ability to mislead or confuse a jury.
However, even if the experts’ testimony were admissible, the Court finds that it would not be sufficient to overcome summary judgment on either the individual or the pattern or practice claims. Admissibility and sufficiency of scientific evidence require two different inquiries.
In re Joint Eastern & South. Dist. Asbestos Lit.,
52 F.3d 1124 (2nd Cir.1995)
(“Eastern & Southern”).
At the threshold is admissibility, and
Daubert
applies. With sufficiency, the issue is whether the “collective weight of a litigant’s evidence is adequate to present a jury question.”
Id.
at 1132. In
Eastern & Southern,
both parties’ experts possessed impressive credentials and their testimony was admissible. The issue was whether it was sufficient to justify a jury’s verdict on causation.
Daubert
does not govern sufficiency determinations.
Id.
In cases that hinge on competing interpretations of scientific or technical evidence, sufficiency poses unique difficulties.
See id.
at 1133. For example, “[b]y its nature, epidemiology is ill-suited to lead a factfinder toward definitive answers, dealing as it does in statistical probabilities and the continual possibility of confounding causal factors.”
Id.
In cases such as this, the court’s determination of sufficiency should be guided by the standard used for judgment as a matter of law. If, viewing the evidence in a light most favorable to the nonmoving party, and without judging credibility of the witnesses or otherwise weighing the evidence, the evidence can lead to but one conclusion, then judgment should be entered accordingly.
Id.
In other words, the focus is no longer on any dispute about the validity or force of the given evidence, but on whether it would be unreasonable for a rational jury to rely on that study or evidence to find causation by a preponderance of the evidence.
Id.
at 1133. Sufficiency assessments entail a review of the sum total of a plaintiffs evidence. In
Eastern & Southern
the district court had mistakenly assessed the weight of the evidence, the credibility of the witnesses, and had substituted its own judgment for the jury’s, which resulted in a reversal by the appellate court.
Id.
at 1137 (stating that the district court had “impermissibly made a number of independent scientific conclusions”).
As noted in
Barnes,
one way of showing disparate treatment, at least initially, is with statistical evidence of a disproportionate termination rate for older as opposed to younger workers. 896 F.2d at 1466 . Such evidence, however, is relatively easy to rebut by a defendant who has carefully documented the procedures used to select employees for termination. That is the situation here. Moreover, the fact that the defendants built into their resizing system several cheeks to make sure that the termination decisions were not having a disproportionate effect on members of protected groups, such as minorities, women, the disabled, or employees over the age of forty, has not been contradicted by the plaintiffs.
17
This fact alone provides substantial evidence that the defendants did not have an intent to target employees for termination because of their age.
See Yatvin v. Madison Metrop. Sch. Dist.,
840 F.2d 412, 416 (7th Cir.1988);
see also Coser v. Moore,
739 F.2d 746, 751 (2d Cir.1984).
The Seventh Circuit has noted that judges must look behind an expert’s ultimate conclusion and analyze the adequacy of its foundation.
Mid-State Fert. v. Exchange Nat’l Bank,
877 F.2d 1333, 1339 (7th Cir.1989). If
*1112
the factual context makes the claim implausible, then the plaintiff must provide more persuasive evidence than would otherwise be necessary.
Id.
For example, it makes no sense that a company that went to great lengths to evaluate the effect of a proposed downsizing on all aspects of its operation, including its EEO compliance, would deliberately choose a criterion designed to discriminate against a protected class of workers.
See Coser,
739 F.2d at 751 (existence of comprehensive affirmative action program is antithesis of pattern and practice discrimination and evidence of an intent to eliminate discrimination) (cited with approval in
Sears Roebuck,
889 F.2d at 351). This factual context makes the plaintiffs’ claims here implausible, and, consequently, heightens the level of proof necessary to be considered sufficient to raise a genuine issue of material fact.
B. PATTERN OR PRACTICE CLAIMS
In
Teamsters v. United States,
431 U.S. 324 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977), the Supreme Court found that a pattern or practice of race discrimination had prevented minority drivers from obtaining line driving positions on an equal basis with white drivers.
Id.
at 335 , 97 S.Ct. 1843 . The Court noted that to make out a prima facie case, the plaintiffs had to show by a preponderance of the evidence that “racial discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.”
Id.
at 336 , 97 S.Ct. 1843 . The United States met that burden with statistics indicating that of a total 6,472 employees, five per cent (5%) were Negro, and 4% Hispanic; but, with line drivers, only 0.4% were Negroes and 0.3% were Hispanic, and all the Negroes had been hired after the litigation had commenced.
The Teamsters argued that statistics alone can never prove the existence of a pattern or practice of discrimination, or even establish a prima facie case. The Supreme Court noted that the plaintiff had bolstered its statistical evidence with anecdotal testimony of forty specific instances of discrimination.
Id.
at 338-39 , 97 S.Ct. 1843 . For example, witnesses testified that minority applicants were given false or misleading information, their applications were ignored, or they were just not considered for the line driving jobs.
Id.
at 339 , 97 S.Ct. 1843 . Even so, the Court stated, it is unmistakably clear that “statistical analyses have served and will continue to serve an important role” in discrimination eases.
Id.
at 339 , 97 S.Ct. 1843 . Statistics are not irrefutable, the Court cautioned, and they may be rebutted.
Id.
at 340 , 97 S.Ct. 1843 . Moreover, their usefulness depends on the surrounding facts and circumstances.
Id.
Implicit in this analysis is that, under the right circumstances, powerful statistical proof may suffice by itself to establish a prima facie case.
The plaintiffs here have a pattern or practice case that is founded virtually on statistics alone. The statistical evidence, however, is not as compelling as that noted in
Teamsters ,
and it is weakened by substantial defects noted by the defendants. One of the most significant is the fact that the plaintiffs’ expert based his analysis on an assumption that was inconsistent with the record, rendering that portion of the statistical study not probative of discrimination.
See Coser,
739 F.2d at 751 . Thus, it must be bolstered by other evidence to meet the sufficiency requirement. The non-statistieal evidence offered by the plaintiffs includes an article by Srikumar S. Rao, an article by Adam Lashin-sky, an uncertified copy of an alleged speech on the “Breakthrough! Leadership” project, a copy of an Ameritech Bulletin dated September 3,1992, which was a deposition exhibit, a transcript of a videotaped interview (Defs.’ Exs. 125, 126), and a transcript of an Ameritech Corporation video. Pis.’ Exs. 4, 5, 6, 8, 12, and 13. The Court will evaluate each of these offerings in turn.
In the Rao article, a statement was attributed to Ameritech Corporation chairman of the board and chief executive officer, Bill Weiss (“Weiss”), to the effect that if Ameritech did not change it could become a “tired old company.” Ex. 4 at 2. However, in his deposition Weiss said that the industry was changing, there was competitive entry at every level, and the board’s task was to learn what must be done to make Ameritech a continuing successful company. Pis.’ Ex. 41, Weiss Dep. at 35-36. He was not sure who had made the “tired old company” remark, but he understood it to mean that if Ameri-
*1113
tech “continued to operate simply as we had in the past, the others would take the more lucrative parts of our market away from us.”
Id.
at 36. Even viewed in a light most favorable to the plaintiffs, this remark could only be seen as a criticism of- Ameritech’s continued operation as a regulated monopoly.
The “tired old company” comment was repeated in a speech allegedly given by Weiss on October 21, 1992, in which he said the board of directors was very supportive of the efforts to avoid becoming a “tired old company that no longer is competitive as our marketplaces move away from us.” Ex. 13. Again, he appears to be referring to the general marketing strategies used by the corporation, rather than the age of its employees. It would not be reasonable to construe it otherwise. Even if it could be construed as age-related bias, Weiss was not a decision-maker with respect to ASI’s CRESP process for resizing, and was in fact remote from the process. Thus, a remark by him would not support a finding of age discrimination by ASI.
See Chiaramonte,
129 F.3d at 402 ;
Oxman v. WLS-TV,
12 F.3d 652, 657 (7th Cir.1993);
Monaco v. Fuddruckers, Inc.,
1 F.3d 658, 660 (7th Cir.1993). This remark adds nothing to the statistical evidence.
In an article written by Adam Lashinsky, Weiss is alleged to have described the four men he appointed to lead the Breakthrough! Leadership project as “young team captains.” Pis.’ Ex. 5. In his deposition Weiss said he did not recall dubbing the four leaders as such.
Id.
at 56. Despite his failure to recall the remark, the defendants have admitted that Weiss used words to that effect. Pls.’ Ex. 30, Answers to Interrog. at 8. Such a remark, taken in the context of announcing a change in direction for the company, does not constitute evidence that Weiss planned to terminate employees at ASI because of their age. Rather, it seems to reflect the idea that these men were to lead the effort to become more competitive. It also reflects the perspective of a man who was sixty-three years old at the time and referring to men who were primarily in their forties.
See
Pis.’ Ex. 41, Weiss Dep. at 30; Pis.’ Ex. 5. A reasonable factfinder would have to make several unusual inferences to conclude from this statement that Ameriteeh planned to force its subsidiaries to arbitrarily fire older workers. The remark also suffers from being too remote from the decisions at issue.
The uncertified, unverified, and almost unidentified, document titled “A Breakthrough! Chronology,” includes an alleged statement by Weiss that Ameriteeh would make the tough decisions necessary to achieve its goals, but would be honest, compassionate and caring because it affected the livelihood of its employees. Pis.’ Ex. 6, “Breakthrough! Chronology” at 1. It is unclear how this comment, if in fact made by Weiss, possibly could be construed as indicating the desire to get rid of older workers, because of their age, and bring in younger ones. It is similarly unclear why plaintiffs cited a 1992 Am-eriteeh Bulletin in support of the contention that Ameriteeh treated younger workers more favorably than older ones. The Court could discern no statement in the entire bulletin to suggest such a plan. Consequently, neither of these pieces of evidence would supplement the proffered statistical evidence enough to overcome its weaknesses, if it were to be admitted.
Other comments regarding age were allegedly made during an Information Technology Video Forum, held on September 10, 1993, by Jim Goetz, ASI’s Director of System Integration Services in the Information Technology Department (“Goetz”). Goetz made the following statement during the videotaped discussion between company executives and employees calling in from remote locations:
There are some of what I would call “professional skills” that we are looking for.... but part of these open positions are just our solid professional openings that we could recruit from college ... So some of them are special skills, professional skills where we are looking for resumes that already have the skills ... but some of this you’ll see are just analysts, entry-level analyst jobs where we want to get back and start bringing in some folks that are under 45 years old.
Defs.’ App. 126 at 4. According to plaintiffs, Goetz’s comment about hiring folks under the age of forty-five is a- clear indication of age-related bias.
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Construed in the light most favorable to the plaintiffs, however, this comment appears to refer to one ASI executive’s call for a resumption of hiring recent college graduates to fill positions that cannot be filled by current employees. The comment implies that ASI had not been doing so in the recent past. In fact, Goetz’s testimony is that they had not. Defs.’ App. 93, Goetz Dep. at 105-06. It says nothing about terminating older workers because of their age, nor does it support the inference that the only people to be hired from the outside would be under the age of forty-five. In addition, the statement was made more than one year after the decision to resize, and nearly ten months after the termination decisions affecting the plaintiffs. It was also made by someone who was remote from any of these decisions: to resize; which criteria to use; how deep to make cuts in each department; or who to select for termination.
See
Defs.’ App. 93, Goetz Dep. at 86; App. 77, Hauf Aff. ¶ 15; App. 92, Vaughn Aff. ¶ 14;
see also Chiaramonte,
129 F.3d at 397 ;
Oxman,
12 F.3d at 657 ;
Monaco,
1 F.3d at 660 (finding insufficient connection between statement of non-decision-maker and adverse employment decision);
Shager v. Upjohn Co.,
913 F.2d 398, 402 (7th Cir.1990) (a stray remark or slur is not by itself proof of actionable discrimination).
Even if it could be attributed to a decision-maker, Goetz’s comment was subsequently clarified during the same interview. Defs.’ App. 126 at 5. Goetz said that his comment was a reference to ASI becoming “open to hiring people from colleges again .... It is my view that hiring professionals is also something we are going to do and if that professional is of any age we’re open to that as well.”
Id.
Given that he called his previous statement stupid during a live broadcast to every Bell affiliate, and his prompt correction of his misstatement, it is unlikely that a reasonable juror would find this incident sufficient to attach an age discrimination motive to ASI’s resizing plan.
Id.
Instead, this appears to be an isolated, stray remark, that at most indicates a willingness to hire recent college graduates, which is not evidence of an intent to target older workers for termination.
Plaintiffs also cite a remark made by Thomas Reiman (“Reiman”), who was the president of Indiana Bell, about the need to continue hiring new people during the downsizing, including hiring “young crazies” to keep the business from drying up. Pls.’ Ex. 50, Reiman Dep. at 299. Although this remark possibly could be interpreted as an indication of the intent to replace the terminated employees with “young crazies,” it cannot be attributed to any decision-maker at ASI. Instead, it falls into a general category of stray remarks that by themselves do not prove actionable discrimination, even if repeated.
See Shager,
913 F.2d at 402 . During his deposition, Reiman explained that he was referring to a subset of the workers they needed to hire to maintain diversity, and by “young crazies” he meant people who did not think the same way that Reiman might think, or that an engineer might think. Reiman Dep. at 299. According to Reiman, who was one of Weiss’ team captains for the “Breakthrough! Leadership” project, the resizing program was a response to the change from monopoly to a competitive environment.
Id.
at 227. “One of the things that stood out was that there was a big distance between the front line person who dealt with the customer and where the authority and the information in the company resided. And so the effort was on the one hand to reduce that bureaucracy ... and on the second to get our costs more in line.”
Id.
at 227-28.
The size of the workforce was also a problem, Reiman noted, both from the cost standpoint and from an efficiency standpoint.
Id.
at 230. For example, a business office service representative would have to go through five layers of management to get to someone who had the authority to say “yes” to a customer.
Id.
The goal of the resizing was to reduce that to only one or two layers, “or even better still, to empower that person on their own to do it.”
Id.
When Reiman’s remarks are viewed in this context, it becomes apparent that the resizing was directed at a corporate restructuring in which many people in positions' known as “middle management” would be terminated. That a disproportionate number of those people might be over the age of forty does not make
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the entire resizing program an intentional plan to discriminate against older workers.
But that is exactly what the plaintiffs would have the Court and a jury believe. According to the plaintiffs, the use of the criterion “growth potential” was intended to weed out older workers who had already achieved most of their potential in terms of promotions. In support of this contention, plaintiffs point to the deposition testimony of ASI industrial psychologist, Gary Morris, and that of Neal Kulick, who worked for Ameritech Corporation in a similar capacity. Kulick’s deposition, however, reveals no underlying intention to weed out older workers, nor does he even admit to suggesting the use of growth potential as a criterion.
See
Pls.’ Ex. 51, Kulick Dep. at 31-32. In his deposition for this case, Morris indicated that he got the idea of using “growth potential” from discussions he had with Kulick, and that the reason for including it was that the business was changing drastically, and they thought it would be useful to review people based on their ability to change. Pis.’ Ex. 45, Vol. 3 Morris Dep. at 540. Adaptability is a reasonable job requirement in an industry that is undergoing drastic changes.
In a deposition for a related case, Morris discussed earlier testing of the proposed CRESP selection criteria, in which he found that older people tended to be ranked lower on the “potential” criterion. Pis.’ Ex. 46, Morris Dep. at 110. Although he did not know what caused such a result, Morris speculated that the reason for the discrepancy was that older people “have less potential to move upward. They are at the position that they basically should be.”
Id.
If growth potential is interpreted merely as advancement potential, Morris’ guess might be on target. Nevertheless, that is not how he had intended growth potential to be used during the resizing, nor is it how it was defined in the program.
See
Pis.’ Ex. 45, Vol. 3 Morris Dep. at 540.
In the CRESP training manual, published and used during the training of CRESP ranking committee members, Morris included a complete description of the plan and its selection process. Ex. 46, Morris Dep. at 115. The manual, which was the only written document on the CRESP process, defines “growth potential” as advancement potential and the potential to grow and change with the business. Pis.’ Ex. 7, at ASI 012606; Defs.’ App. 98, Vol. 1 Morris Dep. at 127. That interpretation is further supported by testimony from defendants’ expert, Robert A. Ramos, who testified about validity studies performed by Ameritech’s predecessor, AT & T, for whom Rarhos had worked, on the management potential and appraisal plan developed by AT & T. Defs.’ App. 106, Ramos Report at 4, ¶¶ 6-9. That plan was passed on to all Bell operating companies, which included the current Ameritech companies.
Id.
¶ 10. The “potential appraisal” concept in use at ASI incorporated the key components of the former AT & T potential appraisal plan.
Id.
¶ 11.
The training manual also specifically instructs the ranking committee members, and anyone else involved in the CRESP process, that race, sex, age, and' disability information will not be provided and should not be considered.
Id.
at ASI 012605. The stated purpose for the CRESP process was to achieve “fair/efficient identification of personnel.” Pis.’ Ex. 7 at ASI 012583. Other criteria to be used for ranking the employees included job skills, experience and knowledge, performance (immediate/recent and past), and leadership skills.
Id.
Those criteria were broken down into further detail in the manual. For example, with the “leadership” criterion, reviewers were to evaluate an employee’s “customer focus, empowerment, integrity, leadership, openness of communication, quality, respect for people, teamwork and value of diversity.”
Id.
at ASI 012606. Considering that the goal of the resizing was to become more efficient, reduce layers of middle management, and increase competitiveness, these criteria seem logically related to accomplishment of those goals.
The actual evaluations were performed by all members of a CRESP ranking committee, composed of other managers within the employee’s department who were one or two levels above those being reviewed, and at least one of whom was comfortable talking about the performance, experience, and skills of any given employee to be reviewed.
Id.
at ASI 012587; Defs.’ Ex. 98, Vol. 1 Morris Dep. at 122. They conducted the rankings
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based on criteria that would have been familiar to each member as it was very similar to that used for the annual or periodic evaluations of the various employees under their supervision. Defs.’ App. 78, Kledzik Aff., ¶¶ 12-13; Defs.’ App. 65, Rankin Aff. ¶¶ 27-28; Defs.’ App. 81, LaCrosse Aff. ¶¶ 10-11; Pis.’ Ex. 45, Vol. 3, Morris Dep., at 544. Each member’s vote on a manager’s relative rank was equal to every other member’s vote, and at the time of the rankings no member of the ranking committee, including the coordinator, knew the number of employees that would be cut from the given CRESP ranking group. Defs.’ App. 82, Little Aff. ¶¶ 16-18; Defs.’ App. 56, Arner Aff. ¶ 18. To the extent possible, the composition of each ranking committee was to be proportional in terms of age, gender and race, and their size was to be kept to a minimum. Pis.’ Ex. 7 at ASI 012587. Departmental Coordinators were responsible for creating and training the ranking committees. Defs.’ Ex. 98, Vol. 1 Morris Dep. at 122.
The CRESP process involved two stages of assessment. The first, Stage I, identified employees who were “at risk,” usually because of his or her relative ranking based on objective criteria from employment records. That mechanical evaluation was conducted by staff in Morris’s office, and it was based on merit pay received by the employee for 1990 and 1991. Defs.’ App. 98, Vol. 1 Morris Dep. at 94-96. Morris used actual merit pay information from the employees’ files to rank them in relation to others within their own departments and in their salary grades.
Id.
at 96. After completing this mechanical ranking, Morris passed the lists on to the departmental coordinators for refinement.
18
Id.
at 97-98. That refinement included determining if anyone was mistakenly ranked low because of only receiving a partial year of pay, being a recent transfer or hire, or if they possessed special skills that could not be replaced.
Id.;
Pis.’ Ex. 7, CRESP Manual at ASI 012637.
After this Stage I refinement was completed, the departmental coordinators drew a line on the lists “at a point that would incorporate twice as many people as they believed would need to be separated” based on the work force projections.
Id.
at 98. These projections came from the Task Force recommendations, which were based on their study of the work performed by ASI managers in the various vice presidential organizations. The Task Force had determined what work or functions could be eliminated, restructured or reduced without harming customer service or impeding ASI’s ability to compete or expand into new markets. Defs.’ App. 75, Catlow Aff. ¶¶ 5, 9; Defs.’ App. 60, Helvey Aff. ¶ 2.
The Task Force made recommendations in August of 1992 about the amount of work that could be eliminated or reduced from each department at various levels of risk to customer service. Catlow Aff. ¶ 9. The members of the Task Force based their recommendations about work elimination and cost reductions solely on the work content and not on the characteristics of any of the specific employees performing the work. Defs.’ App. 92, Vaughn Aff. ¶ 8. Because ASI could not control which employees might accept a voluntary retirement, the company decided it had to implement an involunt

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2486541. Public record. Not legal advice.