Paluck, Vicki G. v. Gooding Rubber Co

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3703

VICKI G. PALUCK,

Plaintiff-Appellant,

v.

GOODING RUBBER COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 2564--Harry D. Leinenweber, Judge.

Argued April 6, 2000--Decided July 26, 2000

Before POSNER, Chief Judge, and FLAUM and RIPPLE,

Circuit Judges.

RIPPLE, Circuit Judge. Vicki Golden Paluck was

employed by the Gooding Rubber Company

("Gooding") from November 1987 until her

termination in January 1997. Ms. Paluck alleges

that she was terminated in violation of Title

VII, 42 U.S.C. sec. 2000e et seq., as retaliation

for filing a sexual harassment complaint against

her supervisor. Further, she claims that she was

terminated because of her age, in violation of

the Age Discrimination in Employment Act

("ADEA"), 42 U.S.C. sec. 12101 et seq. The

district court granted Gooding’s motion for

summary judgment, and she now appeals. For the

reasons set forth in the following opinion, we

affirm the judgment of the district court.

I

BACKGROUND

A.

Vicki Golden Paluck began her career at Gooding

in 1987 as a purchasing clerk. She worked at the

company’s facility in LaGrange, Illinois./1 In

1991, she became a receptionist, and in 1992 she

became an administrative assistant/executive

secretary. She worked primarily for three Gooding

executives: John Mork, Kim Heis, and David

Lawrence. Ms. Paluck admits that, during her

employment with Gooding, she had some attendance

problems and that Mork and Heis repeatedly spoke

to her about her tardiness and her unproductive

use of time.

In January 1996, Heis, Gooding’s Operations

Manager, met with Ms. Paluck and rescinded a

raise he had given her the previous April. In

rescinding the raise, he told Ms. Paluck that he

did not think that her performance had improved

and, further, that he thought she had been making

more personal phone calls than before. That same

day, Heis also reduced the salary of Paulette

Miles, a coworker of Ms. Paluck’s. Ms. Paluck and

Miles believed that Heis’ actions were an effort

to induce them to leave Gooding because they were

aware of Heis’ alleged affair with another

employee.

Less than 10 days later, Ms. Paluck and Miles

requested a meeting with Mork, the company

president, to allege sexual harassment by Heis.

In response to the request, Mork met with Ms.

Paluck and Miles separately. Ms. Paluck and Miles

alleged that Heis frequently made vulgar comments

and used sexually explicit language. The January

1996 meeting was the first time Ms. Paluck had

raised allegations of sexual harassment, although

the incidents she cited dated back as far as

1989. Mork told Ms. Paluck that he would

investigate her complaints. He then spoke to Heis

about his conduct, and Heis responded with a

memorandum defending himself.

Mork later summarized his findings regarding the

allegations against Heis in a February

memorandum. In his memorandum, he determined that

some of Heis’ statements were inappropriate and

that some had been misinterpreted. Mork

reinstated Ms. Paluck to her previous pay level,

and also took her off of the probation on which

Heis had placed her. Mork also listed three

"[d]isciplinary actions" taken against Heis: he

was to cease the actions and comments alleged by

Ms. Paluck and Miles; he was to become "more

sensitive to the feelings of others" and to

"refrain from making inappropriate comments or

statements that can be misconstrued"; finally, he

was warned that "[i]f any harassment occurs in

the future additional disciplinary measures will

be taken." R.37, Ex.3. Mork also wrote that Ms.

Paluck would report directly to him and that he

would handle performance reviews, although she

would still report to Heis when Mork was out of

the office. Mork also spoke to Ms. Paluck and

told her that he would continue to meet with her

to follow up on her complaints, but she now

claims that he did not follow through on this

promise.

Miles voluntarily resigned on March 8, 1996. On

March 15, she was replaced by a woman named Tracy

Herring. Ms. Paluck says that she and Herring

frequently shared duties in the office.

In October, Mork informed the clerical staff

that he would be out of the office a great deal

and that they should report to Heis in his

absence. After Mork’s announcement, Ms. Paluck

expressed to Mork her reservations about working

closely with Heis. In November, Heis sent Ms.

Paluck a memorandum, copied to Mork, expressing

concern with Ms. Paluck’s attendance and with the

amount of time she spent on personal phone calls.

Ms. Paluck’s written response acknowledged

problems with her attendance and tardiness but

indicated her belief that she was being treated

unfairly. In that response she also asked if

Heis’ memo was a written warning and if she

should expect further disciplinary action. In a

reply memorandum, Heis reiterated his concerns

about Ms. Paluck’s performance. He further

confirmed that his first memorandum had been a

written warning and that management retained the

discretion to commence disciplinary action.

Soon thereafter Gooding suffered a financial

blow. One of Gooding’s largest clients was United

States Steel ("USX"). Gooding had contracts to

provide two product lines to USX, hoses and

conveyor belts. Mork and other Gooding employees

met with USX representatives in December. On

January 2, 1997, USX informed Mork that it would

no longer purchase hoses from Gooding. Mork then

sent a memo to employees stating that "the long

association between Gooding Rubber Company and

USX is ending." R.37, Ex.9. Gooding continued to

supply USX with conveyor belts. However, its

sales to USX dropped from approximately $1.6

million in 1996 to $650,000 in 1997.

On January 3, Gooding terminated Ms. Paluck’s

employment. At the time she was 41 years old.

Mork wrote a memorandum for Ms. Paluck’s

personnel file that read, "Effective today, Ms.

Golden [Paluck] was layed [sic] off. The reason

for this action is because of the loss of a

significant customer and lower than expected

revenues in 1996." R.37, Ex.10. Gooding

subsequently laid off several other employees,

although it retained Herring, then 26 years old,

who took over at least some of Ms. Paluck’s

duties.

B.

Ms. Paluck then brought this lawsuit. In her

complaint, she alleges that Gooding violated

Title VII by terminating her in retaliation for

her sexual harassment complaints against Heis.

Further, her complaint alleges that Gooding

discriminated against her because of her age, in

violation of the ADEA, when it chose to terminate

her and retain Herring.

At the close of discovery in the district court,

the court set a briefing schedule on Gooding’s

motion for summary judgment. After Gooding filed

its motion, Ms. Paluck responded and also filed

her own motion for summary judgment. The district

court struck Ms. Paluck’s motion for summary

judgment as untimely filed. The district court

then granted Gooding’s motion for summary

judgment. It determined that Ms. Paluck had not

made out a prima facie case of retaliatory

discharge because she could not show that her

discharge was caused by her engagement in

protected activity. Further, it concluded that,

even if she had made a prima facie case of

retaliatory discharge, she had not demonstrated

that Gooding’s stated reason for her discharge

was pretextual. The district court also granted

summary judgment for Gooding on Ms. Paluck’s age

discrimination claim, determining that she had

failed to show that a similarly-situated younger

employee had been treated more favorably./2

II

DISCUSSION

We review de novo the district court’s grant of

summary judgment for Gooding. See Williams v.

Chartwell Fin. Servs., 204 F.3d 748, 752 (7th

Cir. 2000); Tobey v. Extel/JWP, Inc., 985 F.2d

330, 332 (7th Cir. 1993). In doing so, we view

the record in the light most favorable to Ms.

Paluck, drawing all reasonable inferences in her

favor. See Krocka v. City of Chicago, 203 F.3d

507, 513 (7th Cir. 2000); Boulahanis v. Board of

Regents, 198 F.3d 633, 636 (7th Cir. 1999), cert.

denied, 120 S. Ct. 2762 (2000). Summary judgment

is appropriate only when no genuine issue of

triable fact exists regarding a material issue.

See Williams, 204 F.3d at 752; Krocka, 203 F.3d

at 513.

A. Title VII

Because she has presented no direct evidence of

discrimination, Ms. Paluck’s claim of retaliatory

discharge under Title VII must proceed under the

burden-shifting method set forth in McDonnell

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

First, Ms. Paluck must make a prima facie case of

retaliatory discharge. The prima facie case

includes three elements: (1) that she engaged in

statutorily-protected expression by complaining

about discrimination covered by Title VII; (2)

that she suffered an adverse job action; and (3)

that there is a causal link between the protected

expression and the adverse job action. See Miller

v. American Family Mut. Ins. Co., 203 F.3d 997,

1007 (7th Cir. 2000); Sauzek v. Exxon Coal USA,

Inc., 202 F.3d 913, 918 (7th Cir. 2000). After a

prima facie case has been made, the employer, to

avoid liability, is obligated to produce a

legitimate, non-retaliatory reason for the

dismissal. See Sanchez v. Henderson, 188 F.3d

740, 746 (7th Cir. 1999), cert. denied, 120 S.

Ct. 1201 (2000). Once the employer has produced

its legitimate reason, the employee, to succeed

in her claim, must rebut the employer’s proffered

reason by demonstrating that it is a mere pretext

for discrimination. See Miller, 203 F.3d at 1007;

Sanchez, 188 F.3d at 746.

Gooding contends that Ms. Paluck has failed to

make out a prima facie case because she cannot

show that her protected conduct, making an

allegation of sexual harassment against Heis,

caused her termination. Ms. Paluck, however,

points to two considerations that she claims show

the requisite causation: (1) the timing of her

termination, and (2) the reception by Mork (the

decision-maker) of copies of Heis’ memoranda

criticizing her work. We address each of these

matters in turn.

1.

Ms. Paluck believes that the timing of her

firing gives rise to an inference of

discrimination. It is true that the timing of an

employee’s discharge may be circumstantial

evidence of a retaliatory motive. See Stagman v.

Ryan, 176 F.3d 986, 1001 (7th Cir. 1999), cert.

denied, 120 S. Ct. 446 (1999); Hunt-Golliday v.

Metropolitan Water Reclamation Dist., 104 F.3d

1004, 1011 (7th Cir. 1997). However, in order to

support an inference of retaliatory motive, the

termination must have occurred "fairly soon after

the employee’s protected expression." Davidson v.

Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th

Cir. 1998). Here, the protected expression, Ms.

Paluck’s sexual harassment complaint, occurred

nearly a full year before her termination. That

interval, standing alone, is too long for the

timing of Ms. Paluck’s firing to raise an

inference of discrimination. See Adusumilli v.

City of Chicago, 164 F.3d 353, 363 (7th Cir.

1998) (eight month interval too long), cert.

denied, 120 S. Ct. 450 (1999); Davidson, 133 F.3d

at 511 (five months); Juarez v. Ameritech Mobile

Communications, Inc., 957 F.2d 317, 321 (7th Cir.

1992) (six months). Of course, the fact that a

year passed between Ms. Paluck’s protected

expression and her termination does not mean that

she cannot prove that retaliation caused her

discharge; instead, it means that the timing of

her discharge, in itself, does not support an

inference of retaliation, and she must come

forward with other evidence. See Davidson, 133

F.3d at 511; Veprinsky v. Fluor Daniel, Inc., 87

F.3d 881, 891 n.6 (7th Cir. 1996).

Ms. Paluck claims, however, that there is

another dimension to the timing of her discharge

that supports her claim of discrimination: she

was terminated the day after Gooding announced

its loss of business from USX. She was the first

employee to be terminated after the announcement,

and, she claims, Gooding was "just waiting for an

excuse" to fire her. Appellant’s Br. at 22. We

believe that this assertion adds nothing

significant to her argument that the timing of

her discharge is suspicious. In considering

whether the timing of an adverse employment

action gives rise to an inference of

discrimination, the critical inquiry is, as we

have just noted, the time lapse between the

adverse action and the protected expression. See

Davidson, 133 F.3d at 511; McClendon v. Indiana

Sugars, Inc., 108 F.3d 789, 796-97 (7th Cir.

1997); McKenzie v. Illinois Dep’t of Transp., 92

F.3d 473, 485 (7th Cir. 1996). At the time of her

dismissal, her protected action had occurred

almost a year earlier. We thus decline to infer

retaliatory motive from the timing of Gooding’s

actions against her.

Ms. Paluck further submits that the timing of

her firing is suspicious because it came shortly

after she was returned to Heis’ supervision. This

argument, however, is not based on an entirely

accurate portrayal of the record. Ms. Paluck was

not returned to Heis’ supervision in October.

When Mork wrote his February 1996 memorandum

summarizing the "[d]isciplinary action" against

Heis, he nonetheless informed all parties that in

his absence, Ms. Paluck would report to Heis.

R.37, Ex.3. In October, Mork informed the office

staff that "he would be out of the office a great

deal, and that they should all report to Heis in

his absence." Appellant’s Br. at 9. Thus, the

record reflects that at all times after she filed

her sexual harassment complaint, Ms. Paluck

reported to Mork. Ms. Paluck, along with the rest

of the office staff addressed in Mork’s

directive, simply reported to Heis when Mork was

out of the office. There is no contention that

Heis, the company’s operations manager, was not

the individual to whom it might be expected that

general responsibility for the office staff would

be delegated in Mork’s absence.

2.

We next consider whether any reliance by Mork on

Heis’ memoranda criticizing Ms. Paluck’s

performance raises an inference of

discrimination. Normally, statements by a

nondecisionmaker do not satisfy a plaintiff’s

burden of proof in an employment discrimination

case. See Eiland v. Trinity Hosp., 150 F.3d 747,

751 (7th Cir. 1998); Larimer v. Dayton Hudson

Corp., 137 F.3d 497, 500 n.4 (7th Cir. 1998).

However, if a manager with a retaliatory motive

is involved in the decision to terminate an

employee, that retaliatory motive, in some

circumstances, may be imputed to the company,

even if the manager with a retaliatory motive was

not the ultimate decisionmaker. See Dey v. Colt

Constr. Co., 28 F.3d 1446, 1459 (7th Cir. 1994)

(collecting cases).

We assume for purposes of the following

discussion that Mork did rely on Heis’ memoranda.

Nevertheless, we do not think that, on this

record, any desire for retaliation on Heis’ part

may be imputed to Gooding because of Heis’

memoranda. In Heis’ memoranda, he made two

allegations about Ms. Paluck’s behavior: that she

had problems with attendance and tardiness, and

that she spent too much time on personal phone

calls. In Ms. Paluck’s response to Heis’ charges

against her, she conceded that his first

allegation was accurate, and she did not rebut

his second allegation. In this court, she does

not deny the truth of Heis’ allegations. Ms.

Paluck’s filing of a discrimination complaint

does not prevent her employer from issuing

written charges against her when her conduct

warranted disciplinary action. See Glover v.

South Carolina Law Enforcement Div., 170 F.3d

411, 414 (4th Cir. 1999) ("[E]mployees [may not]

immunize improper behavior simply by filing [a

discrimination] complaint. . . . Employers

retain, as they always have, the right to

discipline or terminate employees for any

legitimate, nondiscriminatory reason."), cert.

denied, 120 S. Ct. 1005 (2000); Brown v. Ralston

Purina Co., 557 F.2d 570, 572 (6th Cir. 1977)

("[A discrimination] complaint creates no right

on the part of an employee to miss work, fail to

perform assigned work, or leave work without

notice."). Because it is undisputed that Ms.

Paluck’s actions justified disciplinary measures,

we do not think a discriminatory motive

reasonably may be inferred from Heis’ taking such

measures. Thus, even if Mork did rely on Heis’

memoranda to terminate Ms. Paluck, no reasonable

finder of fact could conclude that his decision

to do so created a situation in which retaliatory

motive caused Ms. Paluck’s dismissal./3

Ms. Paluck has not provided evidence from which

a reasonable finder of fact could determine that

a desire to retaliate against her motivated her

termination. Thus, she has not made out a prima

facie case of retaliatory discharge. Because we

hold that Ms. Paluck has failed to make a prima

facie case, we need not address the question of

whether Gooding’s stated reason for the

termination was in fact a pretext for a

retaliatory motive. See Cowan v. Glenbrook

Security Servs., Inc., 123 F.3d 438, 445 (7th

Cir. 1997) ("We need not reach the issue of

pretext, as plaintiff has failed to state a prima

facie case of discriminatory discharge under

McDonnell Douglas."); Lewis v. Gillette Co., 22

F.3d 22, 25 (1st Cir. 1994) (per curiam)./4 We

now consider Ms. Paluck’s claim of age

discrimination.

B. ADEA

1.

Ms. Paluck’s age discrimination claim also

proceeds under the McDonnell Douglas burden

shifting method. Here, both parties agree that

after her discharge, Ms. Paluck’s duties were

absorbed by other employees./5 Therefore, to

make a prima facie case for age discrimination,

Ms. Paluck must show that: (1) she was a member

of the protected class; (2) she was qualified for

her position; and (3) she was discharged while

other, similarly-situated employees who were not

members of the protected class were treated more

favorably. See Thorn v. Sundstrand Aerospace

Corp., 207 F.3d 383, 386 (7th Cir. 2000);

Bellaver v. Quanex Corp., 200 F.3d 485, 493-94

(7th Cir. 2000).

The district court concluded that Ms. Paluck had

failed to establish a prima facie case. The first

two elements of the prima facie case are not in

dispute: Ms. Paluck was over 40 and thus a member

of the protected class, and she suffered an

adverse employment action. At issue is the third

element. The district court determined that,

because Ms. Paluck and Herring held different

positions, they were not similarly situated

employees. It is not dispositive, however, that

Ms. Paluck and Herring had performed different

work while both were employed by Gooding. What

must be considered is whether Ms. Paluck was

"constructively replaced" by employees not in the

protected class. Bellaver, 200 F.3d at 495. In

this case, Ms. Paluck contends that she was

replaced constructively by Herring.

Herring testified at her deposition that she

became responsible for much of the work

previously performed by Ms. Paluck:

I kind of acquired, I should say, the things that

she used to do as far as typing proposals and

quotations for the salesmen, retrieving the EDI

daily, things like that, things of that nature.

R.33, Ex.D at 24. Counsel asked Herring, "So

basically all of the things that Vicki [Paluck]

did you took over?" Id. at 25. Herring responded,

"Yes, but we no longer used the dictaphone." Id.

Gooding contends that Ms. Paluck was "a

department unto herself" at the company,

Appellee’s Br. at 28, and that, after her

termination, her duties were dispersed among

several employees. Mork testified at his

deposition that Ms. Paluck’s duties were

redistributed among numerous employees, including

senior executives who began doing their own

typing. According to Gooding, much of Ms.

Paluck’s work was absorbed by employees who were

members of the ADEA’s protected class.

On this record, we believe that it reasonably

may be concluded that Herring effectively

replaced Ms. Paluck. The fact that their job

titles were different is not dispositive. See

Bellaver, 200 F.3d at 494. Thus, we are not bound

by Gooding’s classification of Ms. Paluck as "a

department unto herself." Our focus instead is on

the fungibility of the employees’ positions. See

Miller v. Borden Inc., 168 F.3d 308, 313 (7th

Cir. 1999); Gadsby v. Norwalk Furniture Corp., 71

F.3d 1324, 1331 (7th Cir. 1995). Further, "the

fungibility of jobs is implicit when the

terminated employee’s responsibilities are

absorbed by other employees." Gadsby, 71 F.3d at

1331. Herring testified that she took over all of

Ms. Paluck’s duties, other than dictation, which

was no longer performed. Although there is

evidence in the record from which it could be

concluded that Herring did not actually replace

Ms. Paluck, we cannot say that there is no

disputed issue of fact on this question. Thus, we

shall proceed on the basis that Ms. Paluck has

established a prima facie case of age

discrimination.

2.

Gooding’s stated reason for the discharge is a

reduction in force ("RIF"). Ms. Paluck may show

pretext by demonstrating that Gooding did not

honestly believe that a RIF was the reason she

was fired and that age tipped the balance in

favor of her discharge. See Pitasi v. Gartner

Group, 184 F.3d 709, 718 (7th Cir. 1999). Pretext

may be shown by demonstrating that the reduction

in force was an excuse to get rid of workers

belonging to the protected group. See Matthews v.

Commonwealth Edison Co., 128 F.3d 1194, 1197 (7th

Cir. 1997). Even if the reduction was otherwise

bona fide, a plaintiff may show pretext by

demonstrating that the specific reasons given for

including her in the reduction were pretextual.

See Watkins v. Sverdrup Tech., Inc., 153 F.3d

1308, 1316-17 (11th Cir. 1998); Benson v. Tocco,

Inc., 113 F.3d 1203, 1209-10 (11th Cir. 1997). To

show pretext, Ms. Paluck must show that Gooding

did not honestly believe the reasons it gave for

her termination. See Pitasi, 184 F.3d at 718;

Roberts v. Separators, Inc., 172 F.3d 448, 453

(7th Cir. 1999).

a.

Ms. Paluck argues that the entire reduction in

Gooding’s workforce was a pretext for age

discrimination. She claims that, because Gooding

lied about the extent of the business it was

about to lose, it was lying about its need for a

RIF. Further, she says, the fact that the RIF

disproportionately affected older workers

indicates that it was an excuse to eliminate

older employees.

Ms. Paluck must show that Gooding was lying when

it said that a loss of USX business motivated it

to reduce its payroll. Ms. Paluck’s obligation to

show pretext requires her to show that Gooding

offered a "phony reason for some action." Green

v. National Steel Corp., 197 F.3d 894, 899 (7th

Cir. 1999); Russell v. Acme-Evans Co., 51 F.3d

64, 68 (7th Cir. 1995). The action here was the

reduction in its workforce; the reason given for

that reduction was the loss of USX business. Ms.

Paluck concedes that Gooding lost a substantial

portion of its USX business and that a loss of

business is a legitimate reason to lay off

employees. Although the record is devoid of any

evidence indicating that the savings realized

through layoffs corresponded to the loss of

business experienced by Gooding, Ms. Paluck has

not argued that the RIF was too far reaching to

cover the anticipated loss of business.

Ms. Paluck argues that Gooding lied about how

much business it lost when USX did not renew its

contract. More precisely, she points out that, in

explaining to all of the company’s employees that

the company faced difficult times because of the

loss of USX business, Mork did not disclose that

the company, although losing its hose business,

would retain the conveyor belt business. Yet, the

fact remains that Ms. Paluck simply is unable to

show that Gooding did not honestly believe that

the anticipated loss of its revenue from USX did

not require the reduction in staff that the

company undertook. Indeed, she acknowledges that

the loss of some USX business may have been

sufficient for the company to initiate layoffs.

Ms. Paluck has made no showing, in her effort to

establish pretext, that Gooding did not exercise

honest business judgment in determining that

personnel cuts of this magnitude were an

appropriate business response to the situation it

faced.

Ms. Paluck claims that Gooding did not actually

undertake a RIF at its LaGrange plant because it

continued to hire employees even as the RIF was

supposedly in progress. Evidence that an employer

continued hiring during a purported RIF may

suggest that the RIF was pretextual. See Pierce

v. Atchison, Topeka & Santa Fe Ry. Co., 65 F.3d

562, 573 (7th Cir. 1995). In support of this

argument, Ms. Paluck refers to a record document

listing Gooding’s hirings and terminations in

1997. Ms. Paluck has not explained with any

specificity how this document supports her

assertion that no actual RIF took place. Without

an explanation from Ms. Paluck, our ability to

interpret this document is limited./6 From our

own review of the document, we do not think that

it necessarily supports Ms. Paluck’s argument

that Gooding was taking on full-time employees

during its purported RIF. During 1997, Gooding

terminated 17 people at its LaGrange facility who

had worked for the company prior to 1997. Gooding

also hired 11 people at LaGrange during 1997 who

remained with the company at the end of the

year./7 The terminations occurred almost

exclusively in the first half of the year, right

after Gooding lost its hose business with USX;

almost all of the hirings, in contrast, took

place in the second half of the year./8 The

document does not distinguish between full-time

and part-time employees, or describe any of the

duties performed by the discharged employees. Nor

does it contain salary data. From this document

alone it cannot reasonably be inferred that

Gooding continued hiring new employees in the

midst of its purported RIF. The burden was on Ms.

Paluck to show that Gooding’s RIF was pretextual

because it continued hiring new employees during

its purported RIF, and these unexplained

statistics do not demonstrate pretext.

Finally, we cannot conclude that the RIF was a

pretext for age discrimination solely because the

RIF disproportionately affected employees

protected by the ADEA. "Our court generally has

not found that statistical evidence concerning

terminated employees, without more, is relevant

to our analysis of whether the articulated

reasons for discharging [a] plaintiff were

pretextual or discriminatory." Adreani v. First

Colonial Bankshares Corp., 154 F.3d 389, 400 (7th

Cir. 1998); see also Testerman v. EDS Tech.

Prods. Corp., 98 F.3d 297, 305 (7th Cir. 1996).

As we have discussed, Ms. Paluck has offered no

other evidence to show that Gooding could not

properly undertake a RIF. Thus, we conclude that

Ms. Paluck has not shown that Gooding’s decision

to undertake a RIF was a pretext for age

discrimination.

b.

We next consider whether Ms. Paluck was properly

included in the RIF. Even if Gooding’s RIF had a

legitimate purpose, summary judgment would be

inappropriate if Ms. Paluck can show that

Gooding’s reasons for including her in the RIF

were pretextual. See Watkins, 153 F.3d at 1316-

17; Benson, 113 F.3d at 1209-10. Gooding’s

proffered explanation for including her in the

RIF is that Mork did not think he could justify

keeping an executive secretary, and he wanted to

show leadership in making budget cuts. We must

decide whether there are facts in the record

suggesting that Gooding did not honestly believe

this reason. See Jordan v. Summers, 205 F.3d 337,

343 (7th Cir. 2000); Roberts, 172 F.3d at 453.

The basic methodology of Gooding in conducting

the RIF is discernable from the record. Decision-

making responsibility was vested in the company’s

president rather than, as is often the case, a

committee. However, he consulted subordinate

managers before making decisions. Gooding says

that, in making decisions, Mork looked at "whose

job functions were affected by the impact of the

loss of the USX business" and "other factors."

R.33 at 10. More precise and objective criteria

may have been possible. The "even-handed

application of . . . objective criteria" is an

indication that discrimination was not present.

Cable v. Ivy Tech State Coll., 200 F.3d 467, 478

(7th Cir. 1999). Nonetheless, any lack of

precision in the articulated standards does not

mean that Ms. Paluck’s inclusion in the RIF was

necessarily a pretext for age discrimination. See

Bashara v. Black Hills Corp., 26 F.3d 820, 825

(8th Cir. 1994) (lack of objective criteria does

not show that RIF was motivated by discrimination

when other evidence shows that RIF was bona

fide). The dispositive question is whether Ms.

Paluck has shown that Gooding’s stated reason for

including her in the RIF--that Mork sought to

show leadership by eliminating the executive

secretary position--was pretextual.

Ms. Paluck argues that discriminatory intent is

shown by the fact that she was fired January 3,

1997, the day after the reduction in business

from USX was announced. She points out that no

other employees were terminated for several weeks

after her firing. However, Mork’s later

consultations and decisions do not show that his

reason for terminating Ms. Paluck was pretextual.

In evaluating whether Gooding’s stated reason is

pretextual, we must consider whether Gooding

honestly believed that reason "at the time of

[Ms. Paluck’s] discharge." Michas, 209 F.3d at

695; cf. Cullen v. Olin Corp., 195 F.3d 317, 324

(7th Cir. 1999) (finding that district court

abused its discretion by admitting evidence of

post-RIF job performance that "had no bearing on

management’s state of mind at the time the

decision to terminate [the plaintiff] was made"),

cert. denied, 120 S. Ct. 1423 (2000). No evidence

in the record suggests that, on January 3, 1997,

Mork did not honestly believe that Gooding needed

to cut costs and that he should show leadership

by terminating his own executive secretary. Thus,

Ms. Paluck has not shown pretext.

Conclusion

For the foregoing reasons, the judgment of the

district court is affirmed./9

AFFIRMED

/1 The LaGrange facility was the largest of

Gooding’s four locations; as of December 1996, 50

of the company’s 80 employees worked there. The

company’s 1996 sales were approximately $23

million.

/2 Ms. Paluck contends that the district court

improperly struck facts from her Rule 12

statements without explanation. In ruling on

Gooding’s motion to strike certain facts, the

district court stated that it would "only resolve

objections to statements that are material to the

present claim" to avoid resolving disputes over

irrelevant or unnecessary facts. R.47 at 2. The

district court provided a summary of the facts

but did not say that it had struck any of the

facts in Ms. Paluck’s Rule 12 statements. Because

the district court said that it would explain its

decision to strike any facts and then offered no

explanation for striking any facts, we may assume

that no facts were struck. Further, on appeal we

have considered the entire record without

striking any facts put forward by Ms. Paluck.

/3 Ms. Paluck also contends that Heis was involved

in the decisionmaking process based on a

conversation he had with Mork prior to Ms.

Paluck’s being informed of her termination.

However, in the testimony cited by Ms. Paluck,

Heis said only that Mork informed him of Ms.

Paluck’s termination before informing her.

/4 We note that we reach the issue of pretext in

considering Ms. Paluck’s age discrimination

claim. In analyzing that claim, we conclude that

Ms. Paluck is unable to show pretext.

/5 When a terminated employee’s duties were absorbed

by other employees, rather than eliminated from

the company altogether, we do not require the

former employee plaintiff to make out the prima

facie case normally required for reduction in

force cases. See Michas v. Health Cost Controls

of Ill., Inc., 209 F.3d 687, 693-94 (7th Cir.

2000). For purposes of deciding the proper prima

facie case requirements to apply, our inquiry is

dependent not on the number of employees

terminated, but "on whether [Gooding] still

needed [Ms. Paluck’s] job responsibilities to be

performed." See id. at 694. Thus, when a

particular terminated employee’s duties still

were performed by employees of the company, as

they were here, the reduction in force prima

facie case standard is inappropriate even if the

company terminated numerous other employees.

/6 See Anderson v. Douglas & Lomason Co., 26 F.3d

1277, 1295 (5th Cir. 1994) ("[O]ur review of the

record has been unduly hampered by the

plaintiffs’ failure to establish whether their

statistics were meaningful or significant in

light of the particular facts of this case.");

cf. Plemer v. Parsons-Gilbane, 713 F.2d 1127,

1138 (5th Cir. 1983) ("[The plaintiff] has the

burden to give her raw statistics relevance and

meaning by accounting for basic factors likely to

affect the evidence’s probative value."

(quotations and citation omitted)).

/7 Seven people were hired during 1997 and then

terminated during the same year. Five of the

seven worked at Gooding for less than a month.

Another one was listed as having been hired

December 15, 1997, but terminated October 14,

1997.

/8 Not including employees who served less than a

month with the company, 14 of the 17 terminations

took place on May 14 or earlier, and two more

occurred before June 30. All 11 people hired who

remained with the company at the end of the year

were hired May 21 or later, and eight of the 11

were hired October 7 or later.

/9 Ms. Paluck argued that the district court

improperly struck her motion for summary

judgment. The decision to strike a motion is

generally committed to the discretion of the

district court. See Maldonado v. U.S. Bank, 186

F.3d 759, 768 (7th Cir. 1999). Even if the

district court abused its discretion in striking

Ms. Paluck’s motion, our own de novo review of

the record convinces us that summary judgment for

Gooding is appropriate and, consequently, that

summary judgment for Ms. Paluck would be

improper.