Petition for Writ of Certiorari — Merillat v. Metal Spinners, Inc. (No. 06-1223)

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No.06- OFFICE CF THE Cuz:

IN. THE

Supreme Court of the United States

JANET M. MERILLAT,

Petitioner,

METAL SPINNERS, INC.,

Respondent.

ON PETITION FOR A Writ oF CERTIORARI TO THE

UNiteED STATES CourRT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

NEAL Lewis

Lewis & ASSOCIATES

P.O. Box 68

Orland, IN 46776

(260) 829-6729

Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

The “honest belief” rule is used by the lower courts in

employment discrimination claims to weigh the evidence of

pretext within the McDonnell Douglas burden shifting test.

One question is presented for review:

1. Does the following formulation of the “honest belief”

rule provide the correct legal standard for evaluating whether

a genuine issue of material fact exists on the issue of pretext

in Title VII and ADEA employment discrimination claims?

Our only task is to determine whether [the employer]

“honestly believed in the nondiscriminatory reasons

it offered, even if the reasons are foolish or trivial or

even baseless.”

(14a), Merillat v. Metal Spinners, Inc., 470 F.3d 685, 693

(7 Cir. 2006, comment added, internal quotations court

supplied).

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ....... i

TABLZ OF CORREMTEE scawia cece vcccceccss li

TABLE OF CITED AUTHORITIES ............ Vv

TABLE OF APP errata eke dceeecsnccesees Vili

OPINION Be oki era we viernes cecs l

STATEMENT OF JURISDICTION ............. 1]

STATUTORY PROVISIONS INVOLVED ....... ]

STATEMENT OF THE CASE’.............---. 2

eee 2

B. District Court Proceedings .............. 4

C. The Seventh Circuit’s Disagreement With

The District Court’s Grant Of Summary

Judgment On Merillat’s Prima Facie Case .. 5

D. The Seventh Circuit’s Analysis Of Merillat’s

Evidence Of Pretext Under The “Honest

pe ee 6

E. Conclusion Of The Seventh Circuit Affirming

Summary Judgment On Pretext........... 16

iil

Contents

REASONS FOR GRANTING THE PETITION ...

CERTIORARI IS APPROPRIATE TO

DECIDE WHETHER THE HONEST BELIEF

RULE IS THE PROPER STANDARD TO

EVALUATE EVIDENCE OF PRETEXT IN

TITLE VII AND ADEA CLAIMS UNDER

THE MCDONNELL DOUGLAS BURDEN

ae: a Pe ee ee

A. The Honest Belief Rule Is In Conflict

With Statements Of This Court And It

Strikes The Wrong Balance Between The

Role Of The Reviewing Court On

_ Summary Judgment And The Finder-Of-

FP Fe ee eee Vo mesnee ke abe es

1. Introduction: The Honest Belief

Rule May Erroneously Validate

“Honest” Preferences Based On

SE SUNS a 5.46n's oe ewene eee

2. The Honest Belief Rule Conflicts

With Statements Of This Court ...

B. A Split Of Authority Has Developed In

The Circuits Regarding Whether The

Proper Test For Evaluating Evidence Of

Pretext Should Apply A Subjective Or

An Objective Standard .............

Page

Contents

Page

D. The Facts of This Case Feesent An

Excellent Opportunity For Considering

The Question Presented ............ 24

TT. oe bs tive sah aebevines ee ennee 29

TABLE OF CITED AUTHORITIES

Page

Cases:

Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C.

Se SE 6 63s oe pens deere seers ieee 23

Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006) .... 20

Bullington v. United Air Lines, Inc., 186 F.3d 1301

(10th Cir. 1999, overruled on other grounds)

Pea OE esas Read Pee Oke rodes 22

EEOC v. Sears Roebuck and Co., 243 F.3d 846 (4th

° |: re see eee eceeeeeuees 22

Gustovich v. AT & T Communications, Inc.,972 F.2d

ee eee es EE oo snes olla rea tas 27

Jackson vy. E.J. Brach Corp., 176 F.3d 971 (7 Cir.

I a ie eee ea 20

Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d

Ore Ce RA SD. co bee Gand vabeons ean eeas 21

McDonnell Douglas Corp. v. Green, 411 U.S. 792

EON £6 bbe nce ok eb Ore ee ea ee passim

Merillat v. Metal Spinners, Inc., 470 F.3d 685 (7th

Se Ee Seeks fee ccy eae ea re eae wes i, 5, 2d, 84

Cited Authorities

Page

Reeves v. Sanderson Plumbing Products, Inc., 530

if Rs Le Se errs nee rr T 20

Rojas v. Florida, 285 F.3d 1339 (11th Cir. 2002) .. 22

Ryther v. KARE 11, 108 F.3d 832 (8th Cir. 1997) ..22, 23

St. Mary’s Honor Center v. Hicks, 509 U.S. 502

RE a pared iy ee Ce eek area 20

Smith v. Chrysler, 155 F.3d 799 (6th Cir. 1998) ...22, 23

Smith v. City of Jackson, 544 U.S. 228 (2002) .... 21

Texas Dept. of Community Affairs v. Burdine, 450

a LEER 00 co dene eect vhuweentekeanes 19, 20

Venturelli v. ARC Community Services, Inc., 350 F.3d

PETE Gale BOUEE Kvakr ese e edison eee ehewes 19

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054

EE io eh wy oa bw a whe Law 22

Zapata Matos v. Reckitt & Colman, Inc., 277 F.3d

ee ED 0 v's i 4 oo ene ee ee en 22

vil

Cited Authorities

Federal Statutes:

Ec EE on bo ie cea ben eae

fo ge 2 6G 5 2 RRR RMR Merona taps po Pain renga nas

Oe Ue POLE) ee ip ckdetdkseacatuwenss

MOAe CES oo ee |

Law Journai Articles:

Linda Hamilton Krieger & Susan T. Fiske, Behavioral

Realism in Employment Discrimination Law:

Implicit Bias and Disparate Treatment, 94 Cal. L.

SK. SFE Ge a 60 0k hain s heen oe eae

Page

vill

TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Seventh Circuit Decided

prea G. Fee co.cc 6 4 oo ccd ead ewacns

Appendix B — Opinion And Order Of The United

States District Court For The Northern District Of

Indiana, Fort Wayne Division Entered September

Fi Oe. 6 ieee teens case a

Page

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Seventh Circuit is officially reported at Merillat v. Metal

Spinners, Inc., 470 F.3d 685 (7" Cir. 2006). The opinion of the

United States District Court for the Northern District of Indiana

is unofficially reported at Merillat v. Metal Spinners, Inc. 2005

WL 2304753 (N.D. Ind. 2005).

STATEMENT OF JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1). The Seventh Circuit’s opinion was rendered on

December 6, 2006. No petition for rehearing was filed.

STATUTORY PROVISIONS INVOLVED

Title 29 United States Code, Section 623.

Prohibition of age discrimination.

(a) Employer practices

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s age; [or]

(2) to limit, segregate, or classify his 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. . . .

(f) Lawful practices; age an occupational

qualification; other reasonable factors; laws of

foreign workplace; seniority system; employee

benefit plans; discharge or discipline for good cause.

It shall not be unlawful for an employer, employment

agency, or labor organization—

(1) to take any action otherwise prohibited under

subsections (a), (b), (c), or (e) of this section where

age is a bona fide occupational qualification

reasonably necessary to the normal operation of the

particular business, or where the differentiation is

based on reasonable factors other than age.

Title 42 United States Code, Section 2000e-2.

Unlawful employment practices.

(a) Employer practices

It shall be an unlawful employment practice for an

employer—

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s ... sex....

STATEMENT OF THE CASE

A. Background

The issue posed for review arises under federal labor laws

that prohibit workplace discrimination. In 1983, the petitioner

Janet Merillat, (““Merillat’”) began employment with respondent

Metal Spinners, Inc. (“Metal Spinners”). (2a). Metal Spinners

provides a variety of metal-forming services. (2a) For several

years up to the events here, Merillat was in charge of the metals

department, holding the title “Purchase Manager.” (2a; R. 479).'

In November, 2002, the Chief Executive Officer of Metal

Spinners, Olin Wiland (“CEO Wiland”), newly hired a younger

1. “R.” designates record citations to Menillat’s appendix in the

Seventh Circuit.

3 me

male employee from outside the company, Craig Wehr (““Wehr’)?

to take over the metals department with a newly created title of

“Vice President of Metals.”* (3a). Metal Spinners denied Wehr

replaced Merillat in her former position as head of metals.

(R. 38, par. 12). However, the underlying tasks were exactly

the same. (R. 481-82). The new younger male employee was

started at $62,500.00 annually, while Merillat had been paid

$49,800.00.* (R. 386, 427-28, 441).

During CEO Wiland’s first discussion with Merillat about

the new male employee, he ordered Merillat take down a cartoon ——

lampooning discriminatory pay scales for women in the

workplace. (3a). While the cartoon had been openly posted in

Merillat’s office for many years, Wiland had never before

commented upon it—until he hired Wehr. (3a; R. 464).

Merillat was not immediately terminated, rather she was

——-etained for a brief period, during which she trained Wehr in all

aspects of her job at CEO Wiland’s instruction. (R. 469, 442).

Six (6) months later, she was gone. (3a). When CEO Wiland

informed Merillat of his decision, she was told the termination

was part of a reduction in force (“RIF”) and had nothing to do

with her job performance—that it was a “strictly economic”

decision. (R. 443-44, 460-61).

In the alleged RIF, Metal Spinners terminated one other

employee, transferred another employee to production and

2. Wehr was 38 years old, and Merillat 49, at the relevant time

periods. (4a).

3. At the same time, Merillat’s title of “purchase manager” was

eliminated, and Wiland gave her the lesser title “senior buyer.” (2a).

’

4. The job description for Wehr’s “new” vice-presidential position

was a description of the job Merillat was performing. (R. 482). Also, in

deposition, Wehr thoroughly described his work duties. (R. 318-79, 384).

Those functions were all previously performed by Merillat. (R. 475).

The major responsibilities were the same. (R. 468).

another employee retired. (3a-4a). However, when examining

the staffing of the metals department, the employer’s overall

decision, to hire Wehr and fire Merillat, left the number of

employees operating that department exactly the same.’

As to choosing to include Merillat in the RIF (instead of

Wehr) based on a “strictly economic” decision; Wiland knew it

would cost more in salaries to run the metals department under

Wehr than it had under Merillat. (R. 417-18, 427).

After suit was filed, Metal Spinners asserted additional

reasons why it preferred to hire Wehr and terminate Merillat.

All reasons given, both at termination and after suit was filed,

are discussed hereafter within the context of the lower court

decisions. ;

B. District Court Proceedings

On May 14, 2004, Merillat filed her complaint in United

States District Court for the Northern District of Indiana.

(R. 30). The complaint alleged Metal Spinners had intentionally

discriminated based on age and sex in violation of 42 U.S.C.

§ 2000e-2 (‘Title VII’) and the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 623).° After discovery,

Metal Spinners filed a motion for summary judgment arguing

Merillat could not establish a prima facie case on the McDonnell

Douglas prongs of: 1) satisfactory performance; or, 2) any

similarly situated employee treated more favorably. (R. 46). In

5. Before November 2002, the metals department consisted of

Merillat and one clerical subordinate. (R. 267-68). After June 3, 2003,

the metals department was Wehr and one clerical subordinate—sans

Merillat. (R. 415-17). Obviously, for the brief time from Wehr’s hire to

Merillat’s termination, the metals department temporarily consisted of

three (3) employees.

6. (R. 30). Merillat had also asserted a federal Equal Pay Act claim

for the 6 months she and Wehr temporarily worked together (denied

below).

the alternative, Metal Spinners argued its reasons for preferential

treatment of the new younger male employee could not be shown

to be pretext. (R. 46). Merillat responded with evidence

supporting the prima facie case, and evidence showing that each

of the employer’s stated reasons were objectively unworthy of

eredence. (R. 282, 297).

The district court agreed with the employer on all issues,

granting summary judgment to Metal Spinners on September

19, 2005. (26a).

C. The Seventh Circuit’s Disagreement With The District

Court’s Grant Of Summary Judgment On Merillat’s

Prima Facie Case.

The Seventh Circuit held the district court erred in granting

summary judgment on the prima facie case.’ Where the district

court erroneously found unsatisfactory performance, the Seventh

Circuit recognized that prior years of Menillat’s work evaluations

were “largely positive.”

In her 2001 evaluation, Ms. Merillat received an

“excellent” rating in ten categories and “satisfactory/

good” ratings in seventeen categories, with no

categories rating below “satisfactory/good.”2

See R.36 at 14-15.

i. oa

Similarly, in her 2002 evaluation, she received one

“outstanding” rating, ten “excellent” ratings and

sixteen “satisfactory/good” ratings, with no category

rated lower than “satisfactory/good.” Id. at 18-19.

* * *

7. There was no dispute before the district court that Merillat was

in a protected class with respect to both her age and her sex, and that

she suffered an adverse employment action. (10a).

Additionally, she did receive a raise that stated it

was based, in part, on her performance. Therefore,

summary judgment for Metal Spinners on this prong

would be inappropriate.

(11a-13a). On the issue of Wehr not Veing similarly situated,

the Court of Appeals likewise disagreed with the district court’s

ruling.

There is agreement that a good deal of Ms. Merillat’s

responsibilities were assumed by Wehr, who is

neither female nor within the protected age group.

We therefore must conclude Ms. Merillat has met

this prong of the modified McDonnell Douglas test.

(13a).

D. The Seventh Circuit’s Analysis Of Merillat’s Evidence

Of Pretext Under The “Honest Belief” Rule.

While rejecting the district court’s conclusions on the prima

facie case, the Seventh Circuit affirmed the lower court on the

issue of pretext under the “honest belief” rule.

Our only task is to determine whether [the employer]

‘honestly believed in the nondiscriminatory reasons

it offered, even if the reasons are foolish or trivial or

even baseless.’

(14a). The court of appeals held that while Merillat’s evidence

might demonstrate the employer’s decisions were a “mistake,”

that was not enough to get past the “honest belief” rule. (15a).

The overall reasoning for the RIF construct was given as

follows:

In late 2002 and the first half of 2003, Metal Spinners

experienced significant financial difficulties and

decided to eliminate some positions to decrease

costs—a reduction in force (“RIF’). Ms. Merillat

and another individual, Patrick O’ Beirne, were

terminated on June 3, 2003. Two other individuals

were terminated on June 4, 2003.°

Metal Spinners took the position that Wehr’s hire and Merillat’s

termination was not a replacement. (R. 38, 393-94). Merillat

responded with the evidence that her inclusion in the RIF was a

pretext for the employer’s real intent to replace her with the

new younger male employee. CEO Wiland admitted hiring Wehr

because he was unhappy with Merillat. (R. 396-97). He also

acknowledged subsequent discussions with consultants about

the wisdom of having “replaced” Merillat with Wehr. (R. 423).

Menillat also pointed out Wiland’s inexplicable alteration of titles

for the same job; the title for a female formerly holding the

position was replaced by a new prestigious title given to the

new male_employee. (R. 69, 475, 482). While Metal Spinners

never abandoned its reasoning that Wehr’s hire, followed by

Merillat’s termination, was not a replacement, her former duties

as the head of the metals department were exactly the same as

those newly assumed by Wehr under his new title “Vice President

of Metals.” (d.).

Merillat also submitted evidence that the short time periods

and ultimate lack of change in the number of employees staffing

the metals department contradicted the claim of a RIF as the

true motivation for her termination. Immediately before Wehr’s

hire, the metals department was headed by Merillat with one

subordinate employee. (R. 267-68). After Wehr was hired, within

six months Merillat was terminated, leaving the metals

8. (13a-14a). As noted prior, one of the other employees was not

terminated, but instead, transferred to production, and another accepted

retirement. (3a-4a).

9. In deposition, CEO Wiland was forced to admit Merillat’s job

was either being performed by Wehr or improvements in computer

systems. (R. 413).

department staffed with exactly the same number of employees—

one department head and one subordinate employee—but now

sans Merillat.'°

As sub-reasoning for Merillat’s inclusion in the RIF, the

employer claimed its decision was driven by an economic

downturn. However, Metal Spinners did not explain how

keeping Wehr and terminating Merillat made “economic sense”

given CEO Wiland’s explicit admission that it cost more to run

the metals department under Wehr, compared to Merillat,

because new male employee was paid $7,000.00 more in annual

salary. (R. 417-18, 427-28).

The employer alleged yet another reason for including

Merillat in the RIF was because “many of Ms. Merillat’s tasks

could be done by upgrades to the existing Vantage system,

making her aplausible candidate for termination to cut costs.”

(7a, emphasis added). Vantage is a computer inventory tracking

system that was in use by Merillat.'' As the prior head of metals,

Merillat had regularly requested that Vantage be updated so that

she could operate the metals department more efficiently.

CEO Wiland denied Merillat’s requests, (14a, note 3, R. 454-

55, 482), but after her termination, Wiland gave Wehr those

same upgrades. (R. 385, 389-91, 482-83). Moreover, Wehr had

no experience on the Vantage System pre-hire and had to be

given special training to operate the system.'* Nor did Wehr

10. (R. 415-17). When heading the department, Merillat and Wehr

respectively had access to part time clerical assistance as well as the

one full time subordinate, Amy Stevenson. /d.

11. “Ms. Merillat tracked suppliers, shipments and inventory by

using three different computer programs: Vantage, Al-Net and Excel.”

(2a).

12. Wehr admitted he was given special training by Metal Spinners

to operate Vantage and that he had no experience with this system before

being hired by Metal Spinners in December 2002. (R. 96-97).

actually implement the system upgrades, rather Metal Spinners

hired an outside consultant to perform those tasks for Wehr.

(R. 390-91). And while the improvements given to Wehr made

his job easier, he was not correspondingly given any additional

tasks, rather, he continued to perform the same job previously

performed by Merillat; the only differences being that Wehr

was required to do less work and paid more money. (R. 413,

466-68, 475-76, 482).

The evidence did not logically relate improvements to the

Vantage System as a reason to prefer terminating Merillat.

Improvements that reduced the work to manage inventory was

of equal benefit to whichever employee was retained to run the

metals department. However, consistent with the “honest belief’

rule validating any reason, no matter how “trivial or foolish,”

the Seventh Circuit analyzed the issue as follows:

Ms. Merillat admits that many of her tasks are now

performed by the Vantage computer system and

therefore, at least one of the reasons given by Metal

Spinners for her termination is not pretextual.

(14a)

The employer also recycled its argument of “unsatisfactory

performance” from the prima facie case as a “legitimate” reason

for its preference to terminate Merillat. While having rejected

that reasoning within the prima facie analysis, the Seventh

Circuit came to the opposite conclusion under the “honest belief”

standard for evaluating evidence of pretext.

Even though, as noted above, Ms. Merillat’s

performance may have been satisfactory, it does not

mean that her termination as part of a RIF was

discriminatory.

(15a). Here, the Seventh Circuit did not focus on the prior

evaluations of satisfactory to excellent performance as it had in

the prima facie case. Rather, the court highlighted one past

incident where Merillat admitted not having communicated

diplomatically with co-workers. And, what was not discussed

by the lower court is that years before her termination, Merillat

had resolved the issue, much to her employer’s effusively

expressed satisfaction. In comments under for “teamwork” for

2001, CEO Wiland had written:

She has devoted herself to improving her

interpersonal skills and has done a very good job of

establishing a positive team approach with suppliers

and with co-workers.

(R. 445, emphasis added). And the comments continued under

“work habits:” “Jan has made tremendous improvement in

developing rapport with coworkers... .” (R. 446, emphasis

added). Similarly under “overall assessment:” “Jan has made

tremendous progress with areas previously noted for

improvement.” (R. 446, emphasis added). Again, in 2002, on

the same issue CEO Wiland wrote:

Jan demonstrates continued improvement in this area

{teamwork] and she has done a good job of

establishing a positive team approach with suppliers

and with co-workers. :

(12a, emphasis and comment added). Similarly on the critical

function of inventory control for 2002, CEO Wiland noted under

“Quality:” “Jan did an outstanding job of reducing raw materials

inventories in 2002, although further reductions are achievable.”

(R. 447). And, under “productivity:” “Jan is very knowledgeable

and she must focus on effectively communicating this

knowledge throughout the production process... .”

Merillat consistently argued before both lower courts that

the pre-termination evaluations, pre-termination merit raises,

and pre-termination praise for performance were in glaring

contrast to Metal Spinners’ unreasonable post-litigation claims

that she was failing in job performance. Moreover, the

employer:s post-suit reason of poor performance was directly

contradicted by the contemporaneous admissions of the

decision-maker:

... Ms. Meri!lat maintains that Wiland told her that

her termination was not because of her job

performance, and Wiland admitted in his deposition

that it was “possible” that he told her that.

(16a, note 5, emphasis added). However, in applying the honest

belief rule, the Seventh Circuit concluded:

In a RIF, it is not pretextual to terminate an individual

perceived to be a weak performer in an organization

even if that individual’s performance could also be

characterized as satisfactory or adequate.

(17a).

The employer claimed as yet another reason for her

termination that: “[Merillat] had less desirable education and

experience than Wehr and Wehr was more willing and better

able to implement new strategies.” (14a). Both lower courts

credited the employer’s claim as irrefutably honest, despite

objective evidence that Wehr was not more skilled and was

failing in the position.

Ms. Merillat attempts to counter these differences

in education and experience by claiming that Wehr

actually performed poorly at his job and had to be

taught various skills by Ms. Merillat. However, such

inadequacies by Wehr do not negate the fact that he

has a different educational background and had

different experiences from Ms. Merillat; therefore,

he might well have been regarded as offering more

potential to the company.

(16a, note 4).

She nevertheless contends that Wehr has done a poor

job because he has had inventory sitting idle for

longer periods than she did when she was doing the

metals purchasing. Ms. Merillat submits that Wehr’s

comparatively weaker performance demonstrates

that Wiland was biased against her when he decided

to terminate Ms. Merillat but to leave Wehr in his

position.

_ (14a). And while the Seventh Circuit noted that Wehr had prior

experience with “new computer systems for metals purchasing”

those systems were net the Vantage system used by Metal

Spinners. Wehr had no prior experience with Vantage; the

employer had to provide him with special training, and special

support staff just to utilize the system, contrasted with Merillat

who had previous experience operating the metals department

with Vantage @lbeit, without the support and upgrades given

Wehr). (R. 96-97, 385, 389-91, 482-83).

Curiously, when noting Wehr’s perceived “superior”

experience with other former employers, the Seventh Circuit

Stated by comparison that Merillat had “no experience in the

metal industry prior to working for Metal Spinners” (16a, note

4), seemingly finding no meaning in Merillat’s nineteen (19)

years of experience in the metal industry with this exact

employer. (See, 2a, noting Merillat began her employment with

Metal Spinners in 1983). Nor in this context did the Seventh

Circuit address that for several years before Wehr was hired,

Merillat had been heading Metal Spinners’ metals department.

(2a, R. 479).

Compared to Merillat’s 19 years experience in the metals

industry, and documented praise for her knowledge and skills

operating the metals department,'’ the evidence demonstrated

13. See, discussion of Merillat’s prior evaluations, supra, pp. 5-6,

10.

Wehr lacked suitable experience peculiar to this employer's

business. Merillat was instructed by CEO Wiland to teach Wehr

the aspects of her job. (R. 469, 442). While Merillat was training

Wehr she learned that he knew nothing about the specialized

metal spinning trade and it was apparent he did not have

sufficient skills to run the department. (R. 465, 481). Nor was

Merillat the only one holding this opinion; CEO Wiland admitted

receiving a complaint from another colleague who was “not

sure [Wehr] knows what he’s doing.” (R. 433). That Wehr “did

not know what he was doing” was backed up by substantial

objective evidence.

Internal records from the metals department documented

Wehr’s failing performance, but when faced with that evidence

CEO Wiland continued to see “superior” qualities in Wehr. For

example, CEO Wiland claimed (incorrectly) that Wehr was

responsible for setting up the strategic relationships with metal

suppliers. (R. 436). When pressed, of the five suppliers Wiland

was able to name, he was forced to admit that Merillat set up

the relationships with four. (R. 436-38).

CEO Wiland also wanted to reduce the number of metal

suppliers. (R. 474). Merillat reduced them to 13 by the time of

her termination, @d.), but under Wehr this strategic planning

goal deteriorated. (R. 475).

CEO Wiland also, at first, refused to acknowledge the

objective documentation of Merillat’s strong performance

compared to Wehr’s weak performance in the critical strategic

planning of inventory control measured by the “turns rate.” A

low turns rate is undesirable because it means more raw

inventory must be on hand to meet production. (R. 419). A lower

rate results from the metals department ordering in quantities

that exceed production needs or failing to effectively schedule

shipments. ¢d.) The ultimate negative net effect of a low turns

rate is increased cost to the company. (@d.) An inventory with a

turns rate of 25 costs twice the capital investment to maintain

compared to an inventory with a turns rate of 50. @d.):

While Merillat was running the metals department, Wiland

repeatedly emphasized the importance of the turns rate. (R. 484).

The turns rate was a component of her performance as the

department head and the turns rate is now a component of Wehr’s

performance. (R. 425-26, 432-33). Under Wehr the turns rate

steadily deteriorated, but Wiland at first denied he knew this to

be true. (R. 420). However, Wiland later admitted he “generally”

knew that the turns rate under Merillat had been 52.3 and under

Wehr turns had deteriorated to below 20. (R. 424-25). This

decrease of 260% efficiency in turns directly relates to an

increased cost of 260% to maintain same inventory necessary

for production. (R. 483-84).

Yet, Wiland insisted Wehr’s performance in running the

metals department was better than Merillat’s. (R. 418). Wiland

even claimed Wehr’s better abilities would be reflected in Wehr’s

first evaluation compared to the last evaluation of Merillat

running the department. (R. 418, 429-30). This proved not to

be true. Rather, Merillat’s scores edged Wehr out (rote: lower

numbers indicate higher performance). Merillat’s last

performance rating running the metals department scored a 72,

while Wehr’s first available evaluation scored a 75. (R. 445-46,

449-50).

Wiland’s views of Merillat as a relatively weak performer

compared to Wehr were shown to be erroneous when looking

at the objective evidence. While the Seventh Circuit

acknowledged the evidence demonstrated Wehr might have been

the weaker performer, it concluded that was not relevant to show

pretext.

Metal Spinners may have made a mistake in

terminating Ms. Merillat rather than Wehr during

the RIF. However, such information, even if proven

to be true, would not be relevant to our present

inquiry. Our only task is to determine whether Metal

Spinners “honestly believed in the nondiscriminatory

reasons it offered, even if the reasons are foolish or

trivial or even baseless.”

Even if Metal Spinners’ decision was, in retrospect,

a mistake, that conclusion, made with the benefit of

hindsight, does not mean that Metal Spinners

honestly did not believe that retaining Wehr and

terminating Ms. Merillat was the appropriate

decision at the time it was made.

(14a-15a).

Last, The Seventh Circuit ruled that the following odd

exchange between Merillat and CEO Wiland could not be

considered:

Ms. Merillat had kept a cartoon posted on her

bulletin board that lampooned the difference

between salaries for men and women. The cartoon,

which reasonably could be described as somewhat

crude,'* had been displayed on her board for over

fifteen years. On the day that Wiland told Ms.

Merillat that Wehr had been hired, he asked her to

take the cartoon down.

(3a, emphasis added). While Merillat believes this incident,

in light of its timing and surrounding events, was a window

into CEO Wiland’s underlying prejudices, the Seventh Circuit

disagreed:

14. (R. 464). The cartoon showed a little boy and girl looking

down in their diapers with the caption “oh, so this is the difference in

our salaries.” No images of body parts were visible.

We have said, however, that isolated comments that

are no more than “stray remarks” in the workplace

are insufficient to establish that a particular decision

was motivated by discriminatory animus.

(17a-18a).

E. Conclusion Of The Seventh Circuit Affirming Summary

Judgment On Pretext.

[A]ithough Ms. Merillat has demonstrated disputed

material facts sufficient to prevent summary

judgment for failure to meet her prima facie burden,

Metal Spinners has proffered legitimate, non-

discriminatory reasons to support her termination;

in response, Ms. Merillat has not produced evidence

sufficient to create a triable issue of fact with respect

to her burden of demonstrating that those reasons

are pretextual. Accordingly, we affirm the district

court’s grant of summary judgment in favor of

Metal Spinners on Ms. Merillat’s age and sex

discrimination claims.

(18a).

REASONS FOR GRANTING THE PETITION

I. Certiorari Is Appropriate To Decide Whether The

Honest Belief Rule Is The Proper Standard To Evaluate

Evidence Of Pretext In Title VI And ADEA Claims

Under The McDonnell Douglas Burden Shifting Test.

A. The Honest Belief Rule Is In Conflict With

Statements Of This Court And It Strikes The Wrong

Balance Between The Role Of The Reviewing Court

On Summary Judgment And The Finder-Of-Fact

At Trial.

1. Introduction: The Honest Belief Rule May

Erroneously Validate “Honest” Preferences

Based On Illegal Criteria.

Under the “honest belief’ rule, evidence that an employer’s

reasoning for preferentia! treatment was unreasonable or

erroneous will not support a genuine issue of materiaf fact on

the issue of pretext. (14a-15a; Merillat v. Metal Spinners, Inc.,

470 F.3d 685, 693 (7th Cir. 2006)).

Our only task is to determine whether [the employer]

‘honestly believed in the nondiscriminatory reasons

it offered, even if the reasons are foolish or trivial or

even baseless.’

(Id.). Merillat is mindful that it is her ultimate burden to persuade

a jury that the employer’s true reason was discrimination.

However, the ‘honest belief” rule is an erroneous standard for

purposes of summary judgment and strikes the wrong balance

between the functions of the reviewing court and the ultimate

function of the fact-finder at trial.'>

15. Petitioner believes that in a correct balance, a reviewing court

would apply an objective “reasonable employer” standard on summary

judgment, while a jury would decide whether to believe the employer

made an “honest” mistake (and find no discrimination), or instead, draw

an inference of discrimination based on the logic that employers do not

normally make “foolish trivial or baseless” business decisions.

The Seventh Circuit’s formulation of the honest belief rule

is a defense that allows “foolish, trivial or baseless” reasoning

to conclusively defeat a plaintiff's claim of pretext. Because

the honest belief rule disavows any reference to what a

reasonable employer would do, then, the employer’s defense

becomes virtually impenetrable. In the absence of an objective

standard, the “honest belief” rule is a method for evaluating

pre-text that may often have a serious disconnect with reality. '°

For example, the CEO of a company may “honestly” believe

women have unsuitable temperaments for executive positions.

As a result, the CEO may criticize a female executive for being

overly demanding of subordinates, while a male executive

exhibiting the same trait will be viewed as a bold leader. The

CEO will “honestly” believe that the male has superior

qualifications, but will not express that the underlying reason

for his conclusion is based on an intentionally prejudiced view

16. See, Linda Hamilton Krieger & Susan T. Fiske, Behavioral

Realism in Employment Discrimination Law: Implicit Bias and

Disparate Treatment, 94 Cal. L. Rev. 997, 1036 (2006)

In a powerful series of experiments, MIT business-

management professor Michael Norton and his colleagues

demonstrated this effect in simulated hiring and higher

education admissions decisions. They showed that subjects

consistently altered the qualifications they deemed most

relevant to the selection of a high-level construction

manager, a stereotypically male job. [text omitted]. Either

way, subjects tended to rank the criteria in a way that would

justify selection of the maie candidate on the grounds that

he was “better qualified” than the female candidate they

were rejecting. However, when subjects were forced to rank

the selection criteria before sccing the candidates’ resumes,

gender bias in selection largely disappeared.

of women.'’ When the CEO replaces the female because of his

discriminatory belief, so long as the CEO is careful not to overtly

express his prejudiced views, the “honest belief” rule will place

the underlying intentional discrimination beyond the reach of

federal employment laws—even where superficial reasons given

can be shown to have been objectively unreasonable or arbitrary.

McDonnell Douglas teaches that “it is abundantly clear that

Title VII tolerates no [text omitted] discrimination, subtle or

otherwise.” McDonnell Douglas Corp. v. Green, 411 U.S. 792,

800, 93 S. Ct. 1817, 1823-24 (1973, emphasis and editing

added). If subtle discrimination is to be eradicated, then, the

“honest belief” rule should be abrogated and an employer’s

claimed legitimate reasons subjected to a standard that

objectively evaluates the merits of that reasoning within the

pretext stage of McDonnell Douglas.'*

2. The Honest Belief Rule Conflicts With

Statements Of This Court |

The “honest belief” rule entitles an employer to summary

judgement based on foolish, or trivial, or baseless decisions—

unless the plaintiff can produce additional evidence of

intentional discrimination or additional evidence (beyond

foolish, trivial or baseless) that the employer knowingly engaged

17. At this point in history, most employers are savvy enough to

not openly express bigoted views about the clderly, women and

minorities. In fact, the circuits have regularly acknowledged that there

will rarely be direct evidence of discrimination. See, e.g., Venturelli v.

ARC Community Services, Inc., 350 F.3d 592, 599 (7th Cir. 2003).

18. “[T]he allocation of burdens and the creation of a presumption

by the establishment of a prima facie case is intended progressively to

sharpen the inquiry into the elusive factual question of intentional

discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248, 255, 101 S. Ct. 1089, 1094 n.8 (1981, emphasis added).

in a false scheme.'? See, Jackson v. E.J. Brach Corp., 176 F.3d

971, 984 (7 Cir. 1999). While this Court has specifically

commented that it has not had the “occasion to define more

precisely what standard should govern pretext claims... .”

(Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S. Ct. 1195, 1198

(2006)), a purely subjective formulation like the “honest belief”

rule is in seeming conflict with prior statements of this Court.

The fact that a court may think that the employer

misjudged the qualifications of the applicants does

not in itself expose him to Title VII liability, although

this may be probative of whether the employer’s

reasons are pretexts for discrimination.

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,

259, 101 S. Ct. 1089, 1097 (1981, emphasis added, citation

omitted).

That the employer’s proffered reason is unpersuasive

... does not necessarily establish that the plaintiffs

proffered reason of race is correct. That remains a

question for the factfinder to answer. . . .

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 524, 113 S. Ct.

2742, 2756 (1993, emphasis added, text omitted).

[W]here an [ADEA] plaintiff has made out a prima

facie case of intentional age discrimination .. . the

employer can rebut this case by producing evidence

that its action was based on a reasonable nonage

factor. Thus, the RFOA [reasonable factor other than

age] provision codifies a safe harbor analogous to

the “legitimate, nondiscriminatory reason” (LNR)

justification later recognized in Title VII suits.

eS #6

19. The “honest belief” rule is strikingly similar to the “pretext

plus” rule abrogated in Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 120 S. Ct. 2097 (2000).

[T]he RFOA provision’s reference to “reasonable”

factors serves only to prevent the employer from

gaining the benefit of the statutory safe harbor by

offering an irrational justification. Reliance on an

unreasonable nonage factor would indicate that the

employer’s explanation is, in fact, no more than a

pretext for intentional discrimination.

Smith v. City of Jackson, 544 U.S. 228, 252-53, 125 S. Ct. 1536,

1551-52 (2002, concurring opinion, editing added, text and

citation omitted).”

B. A Split Of Authority Has Developed In The Circuits

Regarding Whether The Proper Test For Evaluating

Evidence Of Pretext Should Apply A Subjective Or

An Objective Standard.

The “honest belief’ rule was first developed by the Seventh

Circuit in Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d

672, 681 (7th Cir. 1997). In Kariotis, the Seventh Circuit

recognized that the basis for the employee’s termination might

have been unreasonable (“objectively speaking, [the employer’s]

investigation left something to be desired”), but never-the-less

held there was no evidence to support a finding of pretext

because it was only the employer’s “honest” belief that mattered.

Id. at 675-77

[A]rguing about the accuracy of the employer’s

assessment is a distraction ... because the question

is not whether the employer’s reasons for a decision

are ‘right but whether the employer’s description of

its reasons is honest.’

20. The “RFOA provision as relevant here states: “Prohibition of

age discrimination. (f) Lawful practices . . . other reasonable factors. . . .

It shall not be unlawful for an employer ... (1) to take any action

otherwise prohibited ... where the differentiation is based on reasonable

factors other than age.” 29 U.S.C. § 623 (f)(1 (text omitted, emphasis

added).

Id. at 677. Similarly, the Ninth, Tenth, and Eleventh Circuits

will not consider evidence that an employer’s reasons were

objectively unreasonable. E.g., Villiarimo v. Aloha Island Air,

Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (all that matters is

“that an employer honestly believed its reason for its actions,

even if its reason is ‘foolish or trivial or even baseless.”);

Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th

Cir. 1999) ¢Televant inquiry is not whether [the employer's]

proffered reasons were wise, fair or correct, but whether [the

employer] honestly believed those reasons... .”, overruled on

other grounds, Nat'l R.R. Passenger Corp. » Morgan, 536 U.S.

101 (2002)); Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir.

2002) (“issue to be resolved is not the wisdom or accuracy of

Florida’s conclusion that Rojas was an unsatisfactory employee.

We are not interested in whether the conclusion is a correct

one, but whether it is an honest one.’’).

However, the First, Fourth, Sixth, Eighth, and D.C. Circuits

have used more objectively based evaluations of whether an

employer’s reasons are worthy of credence. E.g., Zapata Matos

v. Reckitt & Colman, Inc., 277 F.3d 40, 45-46 (1st Cir. 2002)

(rejecting a standard that would conclusively credit an

employer’s subjective belief in the honesty of its explanation);

EEOC vy. Sears Roebuck and Co., 243 F.3d 846, 853-54 (4th

Cir. 2001) (mistaken reasoning could be considered on the issue

of pretext regardless of the employer’s claim that it was honestly

held at the time); Smith v. Chrysler, 155 F.3d 799, 806 (6th Cir.

1998) (evidence decision was not “reasonably informed’

relevant to whether an employer’s reasons are worthy of

credence, expressly rejecting the “honest belief’ rule as

formulated by the Seventh Circuit in Kariotis); Ryther v. KARE

11, 108 F.3d 832, 840 (8th Cir. 1997) (pretext may be shown by

evidence that employer’s decision making process was not

sound);?! Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1294

(D.C. Cir. 1998) (pretext may be based on evidence that the

employer unreasonably selects a less qualified candidate).

In Smith the Sixth Circuit gave explicit reasons for rejecting

a subjectively based test that illustrates the importance of this

Court reviewing this issue.

We find such an abstract application of the rule to

be at odds with the underlying purpose behind the

Act- i.e., that employment actions .. . regarding

[protected classifications] be grounded on fact and

not “on unfounded fear, prejudice, ignorance, or

mythologies.” 136 Cong. Rec. S 7422-03, 7437

(daily ed. June 6, 1990) (statement of Sen. Harkin).

To the extent the Seventh Circuit’s application of

the “honest belief’ rule credits an employer’s belief

without requiring that it be reasonably based on

particularized facts rather than on ignorance and

mythology, we reject its approach.

Smith v. Chrysler, 155 F.3d 799, 806 (6th Cir. 1998, editing

added).

21. The 8 Circuit in Ryther provides an excellent discussion of

this issue.

The ultimate concern, of course, is whether the employer

gave an honest explanation of its behavior. Yct, in the nature

of things, evidence that the defendant employer says it

relied on later shown to be inaccurate may assist the finder

of fact in determining whether the employer is giving an

honest explanation of its actions. As the district court held,

the jury reasonably could have found [the employer’s]

explanations to be “trivial” and inferred that the real reason

[was age discrimination].

Ryther v. KARE 11, 108 F.3d 832, 840 (8th Cir. 1997, editing added,

citations omitted).

Petitioner submits that this disagreement among the circuits

on the appropriate standard to apply in evaluating pretext is

both important and suitably matured for this Court’s review.

D. The Facts Of This Case Present An Excellent

Opportunity For Considering The Question

Presented.

This case is uniquely suited for this Court to resolve the

correct legal standard for weighing pretext evidence under

McDonnell Douglas. If a subjective test is to be abrogated and

an objective standard adopted, here, the facts are rich with

evidence that the employer’s reasoning was unreasonable,

foolish, arbitrary or objectively wrong.?*

The employer claimed it included Merillat in the RIF

because Merillat’s performance was unsatisfactory. However,

objective evidence of the prior two (2) years of pre-termination

evaluations universally rated Merillat satisfactory to excellent

in all categories. The 2001 and 2002 evaluations also contained

explicit praise for her constructive communication with co-

employees and suppliers and explicit praise for her handling

the critical functions of inventory control. Merillat also received

a performance based pay raise prior to her termination.

Moreover, this issue of alleged substandard performance was

not raised by Metal Spinners until after suit was filed. By

contrast, at termination, CEO Wiland told Merillat that her

inclusion in the Mini-RIf had nothing to do with her

performance.’?

22. Complete point citations to all] facts discussed in this section

are found supra in petitioner’s Statement of the Case.

23. That the Seventh Circuit reached one conclusion on

“satisfactory performance” in the prima facie case, but the opposite

conclusion when examining the same evidence on pretext, highlights

the inherent flaw with evaluating the first half of the McDonnell Douglas

under an objective standard, while evaluating the second half by focusing

only on the subjective beliefs of the employer.

The employer also claimed Merillat’s termination was

driven by a need to reduce the number of personnel (i.e., the

RIF). However, before Wehr was hired, Merillat was heading

the metals department with one (1) subordinate employee. Six

months later Merillat was gone and Wehr was heading the metals

department with one (1) subordinate employee. The decision to

hire Wehr, and fire Merillat, resulted in a null reduction in force

within the metals department (discounting the brief intervening

period from Wehr’s hire to Merillat’s termination).

Metal Spinners also claimed that it did not hire Wehr with

any intent to replace Merillat. However, a younger male

employee, new to the company, assumed a position Merillat

had previously held, and shortly thereafter, Merillat was fired.

Despite this new employee being given a different title, and

despite claims that his job was different, in fact, both the position

and duties were exactly the same. Moreover, CEO Wiland

admitted he had sought Wehr to head the metals department

due to claimed dissatisfaction with Merillat, and he admitted to

having had subsequent discussions with consultants in the

context of having “replaced” Merillat with Wehr.

Contemporaneous with these events, Merillat was ordered by

CEO Wiland to take down a cartoon lampooning discriminatory

pay scales for men and women at the exact same time she was

being informed a new male employee had been hired to take

over from her as the head of metals department; a new male

employee CEO Wiland had decided to pay at a higher wage.

The employer also claimed that Merillat’s inclusion in the

RIF was for purely “economic” reasons. However, the numbers

didn’t add up. It was undisputed that it cost significantly more

money to operate the metals department under Wehr, than it

had cost in salary when Merillat was head of the metals

department. Any rational purely economic cost analysis dictated

the new higher paid Wehr would be the first to go-not Merillat.

Metal Spinners also claimed to terminate Merillat because

some of her duties could be performed by improvements to the

inventory control computer program known as “Vantage.” This

reasoning was a non sequitur. Improvements to Vantage would

equally benefit whoever was retained to head the metal’s

department. That there would simply be improvements did not

dictate any particular employee would be a superior beneficiary

of those improvements. Whoever was retained to run the metals

department would find their job made easier by the more efficient

system.

And when it came to experience with Vantage, in any head

to head comparison, Merillat was the objectively more qualified

employee. Merillat had prior experience operating the Vantage

System, while Wehr had no experience with Vantage. Wehr’s

skills were so lacking that he required special outside consultants

to implement upgrades to the system, and required special

training before he could operate any version of Vantage. More

explicitly exposing the arbitrariness of Metal Spinners’

reasoning, the upgrades to Vantage that were given the younger

male replacement were the same upgrades regularly requested

by Merillat when she was head of the metals department, and

which requests were always denied.

Last, perhaps the most “elusive” area of subjective

reasoning expressed by Metal Spinners was the claimed belief

that Wehr had superior qualifications.

One alleged superior qualification concerned the ability to

implement new inventory computer programs. Set against this

claim was evidence that Wehr had no experience with the

computer program actually being used by Metal Spinners; he

needed special training to operate the system and needed a

specially hired consultant to implement upgrades to Vantage.

Merillat by contrast had experience operating the Vantage

system, but had been denied any upgrades to it.

Metal Spinners also claimed Wehr’s prior experience in

running other employers’ metal departments demonstrated he

was “superior.” However, when compared to Merillat’s 19 years

experience in the metals industry, years of heading this metals

department, past performance ratings, past merit raises, and the

employer’s explicitly documented past praise for her knowledge

and skills operating this metals department; any claim to prefer

Wehr was objectively trivial.

This view of the evidence was further supported by Wehr’s

need for training from Merillat in all functions of this particular

metals department, and her resulting observation that Wehr was

not competent to handle the duties unique to this specialized

metals trade. Another colleague shared that opinion, expressing

doubts that Wehr “knows what he is doing.” And while, these —

subjective opinions standing alone might be unpersuasive,’*

Wehr’s performance records demonstrated he was objectively

failing at core functions of running the metals department.

Merillat and her colleague’s observation that Wehr lacked

suitable skills could be objectively evaluated in light of Merillat’s

evaluations and records of performance as head of metals,

against the first available similar data for Wehr.’> In fact, the

24. The Seventh Circuit holds that “[a]n employee’s self-serving

statements about [her] ability ... are insufficient to contradict an

employer’s negative assessment of that ability.” Gustovich v. AT & T

Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992). Merillat agrees

that self-serving statements, standing alone, should not be considered,

but where those statements are supported by other credible evidence,

then, they should be considered. Merillat also believes the “self-serving”

rule should apply to the employer with equal force.

25. Because Wehr was brand new to the company, he had no pre-

RIF performance records. In such a circumstance the McDonnell

Douglas burden shifting test should have been employed in a flexible

manner to allow the most recent available comparisons on either side

(Cont'd)

employer invited a comparison of Merillat’s performance

records against the first available for the new younger male

employee. When questioned about his perception that Wehr was

the comparatively stronger performer, CEO Wiland stated that

his opinions had been borne out by his observations of Wehr’s

post-RIF performance. However, when this belief was closely

examined it was discovered that CEO Wiland was erroneously

crediting Wehr with core tasks actually performed by Merillat.

For example, CEO Wiland attempted to credit the new younger

male employee with having accomplished the “strategic

planning” task of setting up certain supplier relationships—a task

largely completed by Merillat prior to termination.

CEO Wiland also claimed Wehr’s post-termination

evaluations supported that his decision was right. Actually, the

direct opposite of this “belief’ was true. In Wehr’s very first

performance evaluation he was rated slightly inferior compared

to Merillat’s last evaluation as head of metals.

And when examining the critical function of inventory

control (expressed in “‘turns”) the objective data showed Wehr

to be over-whelmingly less competent than Merillat by a factor

of more than 260% reduced efficiency; i.e., a 260% increase in

cost to maintain the same metals necessary for production.

(Cont'd)

of termination. However, the Seventh Circuit would not consider the

evidence that the employer might have made a “mistake” because the

decision could not be evaluated with the benefit of hindsight. (15a).

However, refusing to consider the earliest available objective data of

actual performance is to make impossible the task of refuting an

employer’s claimed subjective preference for a new employee based on

opinion. Merillat submits that where the retaincd employee is relatively

new, without any established track record of performance, then, the

most recent post-event performance records for the preferred employee

provide reasonable data against which the employer’s claimed “honest”

preference can be objectively evaluated.

CEO Wiland had repeatedly emphasized the importance of

inventory turns when Merillat was head of metals. When

confronted with Wehr’s extraordinarily poor performance, CEO

Wiland at first denied he knew about it—but later was forced to

admit he knew it was true. Even though knowing all along that

Wehr was failing in critical tasks of inventory control, CEO

Wiland stuck with the opinion that Wehr was “superior” to

Merillat.

As with the employer’s other claims, CEO Wiland should

be free to argue he “honestly” held a perception that the young

male was superior to the older female, but where an employer’s

“perceptions” are skewed with objective reality, it should be

the function of the jury to decide whether to either: a) believe

the employer’s ciaim that the preference was not based on

discrimination (even though the expressed reasons were

mistaken); or, b) draw an inference of pretext and discrimination

based on evidence that the employer’s choices were objectively

unreasonable and wrong.

CONCLUSION

For the above reasons, a writ of certiorari should issue to

review the judgment and opinion of the Court of Appeals for

the Seventh Circuit.

Respectfully submitted,

NEAL Lewis

Lewis & ASSOCIATES

P.O. Box 68

Orland, IN 46776

(260) 829-6729

Counsel for Petitioner

APPENDIX

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH

CIRCUIT DECIDED DECEMBER 6, 2006

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 05-4053

JANET M. MERILLAT,

Plaintiff-Appellant,

METAL SPINNERS, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 04 C 193—William C. Lee, Judge

ARGUED May 8, 2006—Decipep Decemper 6, 2006

Before Bauer, RippLe and Rovner, Circuit Judges.

RIPPLE, Circuit Judge. Janet M. Merillat brought this action

against her former employer, Metal Spinners, Inc., (“Metal

Spinners”). She alleged age discrimination in violation of

the Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. § 621 et seq.; sex discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

Appendix A

et seq.; and a violation of the Equal Pay Act (“EPA”),

29 U.S.C. § 206(d). Metal Spinners filed a motion for

summary judgment; the district court granted that motion.

For the reasons set forth in the following opinion, we affirm

the judgment of the district court.

BACKGROUND

A. Facts

Metal Spinners provides a variety of metal-forming

services, including metal spinning. Olin Wiland has been its

chief executive officer since 1997.

Ms. Merillat began her employment with Metal Spinners

in September 1983. At all times relevant to this litigation,

she worked in the materials department, which consisted of

Ms. Merillat and Amy Stevenson, who initially was

supervised by Ms. Merillat. Until December of 2002,

Ms. Merillat’s tithe was Purchase Manager; she then became

the Senior Buyer. As the Senior Buyer, her duties included

creating various reports, purchasing, entering orders,

shipping, meeting with management, scheduling trucks,

supervising department employees, negotiating with

suppliers, evaluating suppliers and creating a plan for

reducing the costs of tools. Ms. Merillat tracked suppliers,

shipments and inventory by using three different computer

programs: Vantage, Al-Net and Excel. Consequently,

Ms. Merillat sometimes had to enter the same data into more

than one computer program. Ms. Merillat admitted that some

- 3a

Appendix A

of her computer tasks were redundant, but maintains that

Metal Spinners failed to give her the computer upgrades and

training that would have enabled her to create all necessary

reports on only one program.

In August of 2002, Metal Spinners created a new

position, “Vice President of Procurement and Materials

Management,” and Wiland began a-search for an individual

to fill this position. The duties of this position included

managing the materials department employees (Ms. Merillat

and Stevenson), as well as establishing strategies to reduce

inventory costs and increase profitability. The successful

candidate would be expected to implement a new computer

system. In November, Wiland offered the position to Craig

Wehr. Wehr was 38 years old when he was hired; his starting

salary was $62,500. At that time, Ms. Merillat earned

$49,800. Ms. Merillat helped to train Wehr after he was hired.

Ms. Merillat had kept a cartoon posted on her bulletin

board that lampooned the difference between salaries for men

and women. The cartoon, which reasonably could be

described as somewhat crude, had been displayed on her

board for over fifteen years. On the day that Wiland told Ms.

Merillat that Wehr had been hired, he asked her to take the

cartoon down.

~~,

In late 2002 and the first half of 2003, Metal Spinners

experienced significant financial difficulties and decided to

eliminate some positions to decrease costs-a reduction in

force (“RIF”). Ms. Merillat and another individual, Patrick

O’Beirne, were terminated on June 3, 2003. Two other

individuals were terminated on June 4, 2003. One of those

Appendix A

individuals, John Johnson, retired. The other, Jim Cranfull,

had his position eliminated, but he was allowed to return to

a former position on the production floor.

On the date of her termination, Ms. Merillat was 49 years

old; Wehr was 38 years old. Some of Ms. Merillat’s former

duties, such as creating various reports, are now performed

by the Vantage computer system, following a technical

upgrade by Metal Spinners; other of Ms. Merillat’s tasks have

been absorbed into the positions occupied by Wehr and

Stevenson.

B. District Court Proceedings

In addressing the merits of Metal Spinners’ summary

judgment motion, the district court first observed that

Ms. Merillat had offered no direct evidence of either sex or

age discrimination. The court then proceeded to assess both

of these claims under the burden-shifting framework set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.

1817, 36 L.Ed.2d 668 (1973). The district court determined

that Ms. Merillat could not establish two elements of the

McDonnell Douglas prima facie test: that she was performing

her job to her employer’s reasonable expectations and that

similarly situated employees outside of the protected classes

were treated more favorably than she.

With regard to her work performance, the court noted

that Wiland’s deposition testimony was that Ms. Merillat had

failed to meet his expectations because: (1) she was unable

“to entertain strategic concepts and manage new projects”;

(2) she was “unable to adequately supervise subordinates”;

Appendix A

(3) she “did not get along well with her coworkers”; and (4)

she was “unwilling to implement a corporate-wide computer

system.” R.50 at 7 (citing Wiland Dep., R.35 at 16-17). The

district court also determined that Metal Spinners’

evaluations of Ms. Merillat from 2000-2002 confirmed

Wiland’s deposition testimony. Although the evaluations

contained numerical ratings that indicated that Ms. Merillat

was performing satisfactorily during those years, the court

credited Metal Spinners’ contention that the comments on ~

those reviews “indicate that Merillat was performing

marginally at best.” /d. at 9.

The district court further explained that:

If Merillat had simply been fired from her job in

the absence of a RIF, then she might have been

able to argue that she was performing

satisfactorily enough to not warrant being fired.

But in this case she was not terminated for cause,

but terminated due to reduction in force. This

court agrees with Metal Spinners that what

constitutes “satisfactory” work shifts a bit in a

reduction in force case. Thus, while the record

shows that Merillat was performing in the mid-

range in some respects, the reviews also show that

Merillat had some problems that concerned Metal

Spinners enough that they were included in her

evaluations. Thus, in this regard, the record

supports Metal Spinners[‘] view that Merillat was

a non-satisfactory performer.

Id.

Appendix A

Next, the district court examined the fourth prong of the

traditional RIF McDonnell Douglas inquiry regarding the

treatment of similarly situated employees not within the

protected classes. Earlier in the opinion, the district court

had noted that this circuit’s precedent recognizes variations

on the McDonnell Douglas analysis for a traditional RIF,

where positions and duties are eliminated, and for what this

court has called a “mini-RIF,” where a discharged employee’s

duties are absorbed by other existing staff. See Bellaver v.

Quanex Corp., 200 F.3d 485, 493-95 (7th Cir.2000); Paluck

v. Gooding Rubber Co., 221 F.3d 1003, 1011-12 & n. 5 (7th

Cir.2000). Specifically, the district court noted that under

the modified McDonnell Douglas test appropriate in a “mini-

RIF” situation, the fourth prong of the plaintiff's prima facie

case is satisfied when the plaintiff demonstrates that her

duties were absorbed by persons not in the protected class.

When actually applying the McDonnell Douglas test,

however, the district court looked to whether Ms. Merillat

presented anyone similarly situated to her, an inquiry, which,

as we have noted, is suited to the McDonnell Dougias test in

a traditional RIF situation. See Bellaver, 200 F.3d at 494.

Applying this test, the district court stated that Ms. Merillat

failed to show that similarly situated, younger employees or

similarly situated men were treated more favorably. Jd. at 9.

Although Ms. Merillat claimed that she and Wehr were

similarly situated, the district court determined that they were

not, based on its findings that Wehr was her supervisor and

had more education and broader work experience than

Ms. Merillat.

The district court also held that, even if Ms. Merillat

had established a prima facie case, Metal Spinners had a

Appendix A

legitimate, non-discriminatory reason for terminating her:

The company was experiencing an economic downturn. The

court noted that many of Ms. Merillat’s tasks now could be

done by the new Vantage computer system, making her a

plausible candidate for termination to cut costs. Additionally,

the court stated that her poor job performance was a separate

legally sufficient reason for her discharge.

Finally, the district court turned to Ms. Merillat’s EPA

claim in which she alleged that she was paid less than Wehr

because of her gender. Relying upon Cullen v. Indiana

University Board of Trustees, 338 F.3d 693, 698 (7th

Cir.2003), the district court stated that, in order to establish

a prima facie case of an EPA violation, Ms. Merillat needed

to show that her job and Wehr’s job required comparable

skill, effort and responsibility. The court then held the jobs

did not require comparable “skills” because Wehr’s job

required him to “supervise the department and implement

new strategies to improve supplier relationships,” while

Ms. Merillat’s did not. Jd. at 19. The court also held that the

jobs did not require equal “effort,” because Wehr’s added

responsibilities “created more stress.” /d. Finally, the court

stated that the jobs did not require equal “responsibility,”

because Wehr had supervisory responsibility of the entire

department, including Ms. Merillat. /d. Therefore, the district

court held that Ms. Merillat could not establish a prima facie

case of wage discrimination.

The district court further held that, if Ms. Merillat had

established a prima facie case, the burden would shift to

Metal Spinners to prove one of the statutory defenses,

including that the unequal pay arose from a seniority system,

Appendix A

a merit system, or any factor other than gender. Jd. at 19-20.

The court found that Wehr had more experience and education

than Ms. Merillat, and that this distinction, along with market

forces, provided a reason other than sex that justified paying

Wehr a higher salary. The court characterized Ms. Merillat’s

response to Metal Spinners’ proffered non-discriminatory

reasons for the pay differential as “fatally weak,” finding

that she merely had relied on her own testimony that she and

Wehr “performed a common core of tasks.” Jd. at 21. The

court, therefore, found that Ms. Merillat’s EPA claim “fails

as a matter of law.” Jd. at 22.

DISCUSSION

We review a district court’s grant of summary judgment

de novo, construing all facts and reasonable inferences in

the light most favorable to Ms. Merillat, the nonmoving party.

Healy v. City of Chicago, 450 F.3d 732, 738 (7th Cir.2006).

A. Age and Sex Discrimination

1. Prima Facie Case

Ms. Merillat submits that, employing the McDonnell

Douglas framework, she has established a prima facie case

of age and sex discrimination. See McDonnell Douglas, 411

U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Although

McDonnell Douglas itself outlined a particular four-part

showing that a plaintiff must make to establish her prima

facie case, we long have recognized that the test is not

Appendix A

inflexible and is appropriately adapted where necessary to

“reflect more fairly and accurately the underlying reality of

the workplace.” Bellaver, 200 F.3d at 494. In a mini-RIF

context, a situation in which the dismissed worker’s duties

have been absorbed by another employee rather than

eliminated, we employ one such modified version of the

McDonnell Douglas framework. Johal v. Little Lady Foods,

Inc., 434 F.3d 943, 946 (7th Cir.2006); Paluck, 221 F.3d at

1011 n. 5. This approach requires that Ms. Merillat

demonstrate that: (1) she is a member of a protected class;

(2) she was meeting her employer’s legitimate performance

expectations; (3) she suffered an adverse employment action;

and (4) her duties were absorbed by employees not in the

protected classes.' Johal, 434 F.3d at 946; Michas v. Health

Cost Controls of Illinois, 209 F.3d 687, 693 (7th Cir.2000).

1. The parties in this case presented ar guments relating to the

viability of any comparison group presented by Ms. Merillat to

demonstrate that similarly situated individuals outside the protected

class were treated more favorably than she. This showing would be

part of a plaintiff’s prima facie showing under a traditional RIF test.

See Bellaver v. Quanex Corp., 200 F.3d 485, 494 (7th Cir.2000). In

this case, however, since Ms. Mcrillat’s duties were absorbed rather

than eliminated, it is more properly evaluated under the mini-RIF

test. See Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1011 n. 5

(7th Cir.2000) (stating that the key inquiry in determining whether

to apply the RIF or the mini-RIF prima facie test is not the number

of individuals terminated, but whether the duties of those individuals

were absorbed by existing staff or eliminated altogether). °

_ Although Paluck, a mini-RIF case, uses the “similarly situated”

and “treated more favorably” language, our case law clarifies that

this showing is satisfied in the mini-RIF context when a plaintiff

(Cont'd)

10a

Appendix A

Metal Spinners does not dispute that Ms. Merillat is in a

protected class with respect to both her age and her sex. Both

parties also agree that Ms. Merillat suffered an adverse

employment action when she was terminated. We therefore

Shall focus on the two contested prongs: whether Ms. Merillat

was meeting her employer’s legitimate expectations and

whether her duties were absorbed by individuals not within

her protected classes.

a. meeting legitimate expectations

Ms. Merillat contends that she was meeting her

employer’s expectations. She invites our attention to her

yearly reviews for 2001 and 2002 in which Wiland’s overall

rating of her performance was “Satisfactory/Good.” R.44,

Ex.E-F. She also points to a letter that she received in January

of 2003 that notes that she had been awarded a raise in her

salary and that this adjustment in salary “recognize[d her]

performance during the past year.” R.44, Ex.L.

(Cont'd)

demonstrates that the duties of the terminated worker have been

absorbed by retained workers outside of the protected class. See

Bellaver, 200 F.3d at 495 (“The plaintiff in a [mini-RIF] case does

not need to make a showing that ‘similarly situated’ employees were

treated better because the inference of discrimination arises from

the fact that they were constructively ‘replaced’ by workers outside

of the protected class.”); Michas v. Health Cost Controls of Illinois,

Inc., 209 F.3d 687, 693 (7th Cir.2000) (same). The retention of an

employee outside the protected class to perform the plaintuff’s duties

is nothing more than a demonstration of more favorable treatment,

particularly tailored to the factual circumstances of a mini-RIF case.

lla

Appendix A

Metal Spinners relies on the same reviews. It submits

that the written comments on those reviews indicate that

Ms. Merillat was not meeting her employer’s expectations.

More specifically, Wiland testified in his deposition that

Ms. Merillat did not meet his expectations for the following

areas: ability to entertain strategic concepts and manage new

projects, willingness to accept new challenges, ability to get

along with others and willingness to implement a computer

system. R.35 at 9-10.

The evaluations, while providing some negative

comments, seem to be largely positive. In her 2001

evaluation, Ms Merillat received an “excellent” rating in

ten categories aid “satisfactory/good” ratings in seventeen

categories, with no categories rating below “satisfactory/

good.’” See R.36 at 14-15. Some comments included on the

evaluations are positive, such as “Jan has made tremendous

progress with areas previously noted for improvement,” id.

at 15, and, in the area of work habits, “[{s]he is performing at

a level commensurate with her position and she needs to

continue developing personally as an effective manager,” id.

Some comments, however, are more negative, such as

Ms. Merillat “may need to consider delegating additional

tasks,” id., and she “needs to explore alternatives to her

current methods and practices so cost improvements can be

realized,” id. at 14.

2. Some examples of the various categories on the evaluation

form include: “Does the team member possess and apply the skill

level necessary for the job?”; “Does the team member have a good

attitude?”’; and “Does the team member offer suggestions as to how

to improve productivity?” R.36 at 14-15.

12a

Appendix A

Similarly, in her 2002 evaluation, she received one

“outstanding” rating, ten “excellent” ratings and sixteen

“satisfactory/good” ratings, with no category rated lower than

“satisfactory/good.” Jd. at 18-19. Again, there are some

positive comments, such as Ms. Merillat “demonstrates

continued improvement” in teamwork, id. at 18, and she “did

an outstanding job of reducing raw materials inventories in

2002,” id. There are also negative comments, such as she

“has too many redundant/ duplicative business practices that

must be challenged,” id., and she must work on “developing

rapport with coworkers and with improving her overall

morale and demeanor,” id. at 19.

Mr. Wiland stated in his deposition that he had attempted

to make the written evaluations as fair as possible. He first

admitted in his deposition testimony that he did not indicate

“specifically” on these evaluations that Ms. Merillat was

failing in her expectations, R.35 at 20, but later stated that

“printed words [on the evaluation forms] in conjunction with

[the conversation he had with Ms. Merillat while going over

the forms with her] indicate that she was not fulfilling the

expectations that we had for her at that position,” id. at 23.

For her part, Ms. Merillat admitted to “getting ugly” with

co-workers when they “didn’t do something nght,” in 2001,

but also stated that later she “changed.” R.33 at 13-15. She

contends that her job performance was largely positive and

that the reason for some of her failings was that she did not

get the necessary computer upgrades and training to utilize

the Vantage system and eliminate some of her redundant

practices.

13a

Appendix A

We must conclude that, based on this record, material

issues of fact certainly remain with respect to whether

Ms. Merillat was meeting her employer’s expectations. Her

employment evaluations are, at best, inconclusive.

Additionally, she did receive a raise that stated it was based,

in part, on her performance. Therefore, summary judgment

for Metal Spinners on this prong- would be inappropriate.

b. duties absorbed by individuals outside the

protected classes

There is agreement that a good deal of Ms. Merillat’s

responsibilities were assumed by Wehr, who is neither female

nor within the protected age group. We therefore must

conclude that Ms. Merillat has met this prong of the modified

McDonnell Douglas test. :

2. Pretext

If the plaintiff does establish a prima facie case, the

burden shifts to the defendant to articulate a legitimate, non-

discriminatory reason for the termination. See Johal, 434 F.3d

at 946. If the defendant does articulate such reasons, the

burden shifts back to the plaintiff to prove the proffered

reasons were pretextual. See id.

In the present case, where there is a genuine issue of

material fact with respect to whether Ms. Merillat was

mecting expectations, Metal Spinners can prevail on its

motion for summary judgment only if it can show

that there remains a non-pretextual and non-discriminatory

reason for her discharge. Metal Spinners offers several

l4a

Appendix A

nondiscriminatory reasons for terminating Ms. Merillat as

part of its RIF: Many of her duties could be eliminated by

the implementation of the Vantage computer system; she -had

a history of difficulty working with co-workers and suppliers;

She had less desirable education and experience than Wehr

and Wehr was more willing and better able to implement

new Strategies.

Ms. Merillat admits that many of her tasks are now

performed by the Vantage computer system and therefore, at

least one of the reasons given by Metal Spinners for her

termination is not pretextual.’ She nevertheless contends that

Wehr has done a poor job because he has had inventory sitting

idle for longer periods than she did when she was doing the

metals purchasing. Ms. Merillat submits that Wehr’s

comparatively weaker performance demonstrates that Wiland

was biased against her when he decided to terminate

Ms. Merillat but to leave Wehr in his position. However,

much of Ms. Merillat’s explanation for Wehr’s poor

performance refers to his performance after her termination.

Metal Spinners may have made a mistake in terminating

Ms. Merillat rather than Wehr during the RIF. However, such

information, even if proven to be true, would not be relevant

to our present inquiry. Our only task is to determine whether

Metal Spinners “honestly believed in the nondiscriminatory

reasons it offered, even if the reasons are foolish or trivial or

3. Ms. Merillat does argue that, while she was employed, she

had requested that the Vantage system be upgraded to help eliminate

her redundant work practices. See Appellant’s Br. at 33. However,

this docs not negate the fact that the computer can now produce the

reports that Ms. Merillat formerly produced, which is a fact that she

admits. See id.

15a

Appendix A

even baseless.” Jackson v. E.J. Brach Corp., 176 F.3d 971,

984 (7th Cir.1999); see also Balderston v. Fairbanks Morse

Engine, 328 F.3d 309, 323 (7th Cir.2003) (“[A} plaintiff must

_do more than demonstrate that the employer made a mistake

.... ). Even if Metal Spinners’ decision was, in retrospect,

a mistake, that conclusion, made with the benefit of hindsight,

does not mean that Metal Spinners honestly did not believe

that retaining Wehr and terminating Ms. Merillat was the

appropriate decision at the time it was made. See Johal, 434

F.3d at 946 (stating that, when examining a claim of pretext,

“it is not our role to question the wisdom of a company’s

decisions on how to run its business”); McKnight v. Kimberly

Clark Corp., 149 F.3d 1125, 1129 (10th Cir.1998) (“An

articulated motivating reason is not converted into pretext

merely because, with the benefit of hindsight, it turned out

to be poor business judgment.”).

Ms. Merillat further submits that the district court created

a new standard when it stated that “what constitutes

‘satisfactory’ work shifts a bit in a reduction in force case.”

Appellant’s Br. at 25 (quoting R.50 at 9). However, when

read in context, it is clear that the district court was only

stating what we have already recognized: that, even if an

employee would not have been fired under normal

circumstances, “[i]n a reduction in force, someone has to

go. It is usually the least qualified or least productive

employee.” Fairchild v. Forma Scientific, Inc., 147 F.3d 567,

573 (7th Cir.1998). Even though, as noted above, Ms.

Merillat’s performance may have been satisfactory, it does

not mean that her termination as part of a RIF was

discriminatory. See Balderston, 328 F.3d at 324 (holding that

the plaintiff did not demonstrate’ pretext when there was no

16a

Appendix A

evidence to show that the employer “did not honestly believe

[it] was dismissing a poorer performing, less suitable”

employee in a RIF)!

Relatedly, Ms. Merillat points out that, when Wiland told

her that she was terminated, he told her it was due to “the

poor performance of the company and economic softening

in the marketplace.” Wiland Dep., R.44, Ex.D-2-at 27. He

admitted in his deposition testimony that he accurately

represented to her the reasons for her termination.’ Jd. This

4. The record certainly contains evidence that supports Wiland’s

judgment in this respect. Ms. Mcrillat had only one year of post-

high school education (a legal secretary degree) while Wehr had a

bachelor’s degree in business administration. Additionally,

Ms. Merillat had no experience in the metal industry prior to working

at Metal Spinners, while Wehr had previously overseen two other

metal purchasing departments, had experience with new computer

systems for metals purchasing and had significant contacts in the

metal industry. See Patterson v. Avery Dennison Corp., 281 F.3d

676, 680 (7th Cir.2002) (finding that employees with different

qualifications and experiences were not similarly situated); Doan v.

Seagate Tech., Inc., 82 F.3d 974, 979 (10th Cir.1996) (holding that

employee without relevant degree is not similarly situated to those

with relevant degrees). Ms. Merillat attempts to counter these

differences in education and experience by claiming that Wehr

actually performed poorly at his job and had to be taught various

skills by Ms. Merillat. However, such inadequacies by Wehr do not

negate the fact that he has a different educational background and

had different experiences from Ms. Mcrillat; therefore, he might well

have been regarded as offering more potential to the company.

5. In fact, Ms. Merillat maintains that Wiland told her that her

termination was not because of her job performance, and Wiland

admitted in his deposition that it was “possible” that he told her

that. R.44, Ex.D-2 at 23.

17a

Appendix A

statement is consistent with a termination under a RIF. Even

if Ms. Merillat’s performance was sufficiently acceptable to

justify retaining her in better times, that consideration does

not establish that Metal Spinners’ reasons for terminating

her in a RIF situation were pretextual. See Fairchild, 147

F.3d at 573. In a RIF, it is not pretextual to terminate an

individual perceived to be a weak performer in an

organization even if that individual’s performance could ‘also

be characterized as satisfactory or adequate.

Next, Ms. Merillat contends that Wiland preferred to

work with members of his social group and therefore chose

a younger male colleague over Ms. Merillat. In support of

this contention, Ms. Merillat points to the several occasions

on which Wiland had lunch, drinks or dinner with Wehr, while

he had never done any of the same with Ms. Merillat.

However, in this context, socializing with someone who is

not a member of a protected class does not demonstrate bias

against those who are in a protected class. The fact that

Wiland and Wehr had a more amiable social relationship is

not enough to demonstrate that Wiland’s reasons for

terminating Ms. Merillat were pretextual and that he was

actually motivated by age and/or sex discrimination. See, e.g.,

Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007-08 (8th

Cir.2005) (stating that the fact that a decision-maker went to

lunch with white managers does not mean that his decision

not to promote a minority employee was pretextual).

Finally, Ms. Merillat points to Wiland’s request that she

remove the cartoon lampooning the differences between male

and female salaries that she had hanging on her bulletin board.

Ms. Merillat argues that this incident is relevant to show bias

18a

Appendix A

toward women in the workplace. We have said, however,

that isolated comments that are no more than “stray remarks”

in the workplace are insufficient to establish that a particular

decision was motivated by discriminatory animus. See Cullen

v. Olin Corp., 195 F.3d 317, 323 (7th Cir.1999). We have

cautioned that this general rule may give way where particular

remarks in fact support an inference that unlawful bias

motivated the decision-maker, such as when those remarks

are made by the decision-maker or one having input in a

decision, and are made “(1) around the time of, and (2) in

reference to, the adverse employment action complained of.”

Hunt v. City of Markham, Illinois, 219 F.3d 649, 652-53 (7th

Cir.2000). Wiland’s statement regarding the cartoon fits

neither of those categories, nor does it otherwise demonstrate

a bias on Wiland’s part sufficient to support an inference of

discriminatory animus. It is, therefore, clearly insufficient

to sustain a determination that the reasons for the discharge

stated by Wiland and supported by evidence were pretextual

in nature.

Accordingly, we must conclude that although

Ms. Merillat has demonstrated disputed material facts

sufficient to prevent summary judgment for failure to meet

her prima facie burden, Metal Spinners has proffered

legitimate, non-discriminatory reasons to support her

termination; in response, Ms. Merillat has not produced

evidence sufficient to create a triable issue of fact with respect

to her burden of demonstrating that those reasons are

pretextual. Accordingly, we affirm the district court’s grant

of summary judgment in favor of Metal Spinners on Ms.

Merillat’s age and sex discrimination claims.

19a

Appendix A

B. Equal Pay Act

1. Prima Facie Case

In order to establish a prima facie case under the EPA,

Ms. Merillat must show: “(1) higher wages were paid to a

male employee, (2) for equal work requiring substantially

similar skill, effort and responsibilities, and (3) the work was

performed under similar working conditions.” Cullen v.

Indiana Univ. Bd. of Trs., 338 F.3d at 698 (quoting Stopka v.

Alliance of American Insurers, 141 F.3d 681, 68* \/th

Cir.1998)). The parties do not dispute the first prong. Wehr’s

salary was $62,500; Ms. Merillat’s salary was $49,800. R.29

at 1. With respect to the third prong, Ms. Merillat and Wehr

worked together in the same office, and Metal Spinners does

not argue that their work was not performed under similar

working conditions. Therefore, only the second prong is at

issue: whether Ms. Merillat and Wehr’s positions required

“substantially similar skill, effort and responsibilities.”

In order to determine whether or not the two jobs are

equal, we look to whether the jobs have a “common core of

tasks, i.e., whether a significant portion of the two jobs is

identical.” Cullen v. Indiana Univ. Bd. of Trs., 338 F.3d at

698 (internal quotation marks omitted). Once a plaintiff

establishes a “common core” of tasks, we ask whether any

additional tasks make the jobs “substantially different.” /d.

When assessing job duties, each of the elements listed in the

EPA (skill, effort and responsibilities) must be met

individually to establish a prima facie case. /d.; see also

29 C.F.R. § 1620.14. We look to the actual job duties

performed by each employee, not to his or her job description

20a

Appendix A

or title. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446,

1461 (7th Cir.1994).

Ms. Merillat asserts that she and Wehr had many of the

same tasks, including: negotiating with suppliers, buying

materials, and allocating materials for production. However,

Metal Spinners submits that there are two areas in which

Ms. Merillat and Wehr’s job duties differed. These two

differences, it asserts, make their respective jobs

“substantially different” for purposes of the Equal Pay Act:

(1) Wehr’s responsibility for “strategic planning”; (2) Wehr’s

supervision of Ms. Merillat. We shall discuss each of these

factors in turn.

Metal Spinners contends that part of Wehr’s job duties

included strategic planning, which it states required him to

“implement new _ strategies to improve supplier

relationships.” Appellee’s Br. at 43. Wehr also testified that

his job duties included “establishing strong relationships with

. suppliers.” R.44, Ex.C-1 at 14. Ms. Merillat testified that,

during the six months that she remained at Metal Spinners

after the arrival of Wehr, she participated in this function

because she “sat in on almost every meeting that [Wehr] had

with the suppliers.” R.44, Ex.H at 8. In his deposition, Wiland

stated that, before Wehr was hired, Ms. Merillat was

responsible for “obtaining cost effective purchasing and

costing for our metals,” and that she “was responsible for

investigating alternative methods and practices that would

improve the profitability of the company, specifically

pertaining to [her responsibility in] supplier relationships.”

R.35 at 8. Ms. Merillat testified that, after Wehr was hired,

she continued to work to reduce the number of suppliers, as

2la

Appendix A

Wiland had requested. See R.33 at 5. She also stated that she

continued to “negotiate with suppliers” after Wehr was hired.

R.44, Ex.H at 20.

We believe that it is clear on the record as a whole that,

with respect to strategic planning, Ms. Merillat’s day-to-day

duties with regard to suppliers did not change appreciably;

she never assumed corporate-wide responsibility for the

planning responsibilities placed on Wehr’s shoulders upon

his accepting the vice-presidential position at Metal Spinners.

Thus, at the time his compensation was set, it was understood

that he would handle significant responsibilities that had not

been Ms. Merillat’s. That Ms. Merillat did not see Wehr make

significant contributions toward the achievement of those

goals does not establish that the company’s expectations with

respect to Wehr’s performance had changed.

Next, we turn to Wehr’s supervisory duties. All parties

agree that Wehr’s job duties included functioning as Ms.

Merillat’s supervisor. See Wiland Dep., R.44, Ex.D-1 at 9;

Merillat Dep., R.44, Ex.H at 7. Ms. Merillat also admitted,

in her deposition, that Wehr had supervisory duties over the

materials department employees. R.44, Ex.H at 2. She

explained that Wehr, not she, had the authority to hire and

fire employees, and that Stevenson would contact Wehr when

she was calling in sick. Jd. Stevenson, in her deposition,

agreed that Wehr had become her direct supervisor when he

was hired. R.37 at 4.

Wehr therefore had supervisory duties that Ms. Merillat

did not exercise. Of course, as we have noted, not all

differences in supervisory duty render two positions unequal

22a

Appendix A

for purposes of the EPA. See Fallon v. State of Illinois, 882.

F.2d 1206, 1209-10 (7th Cir.1989). Indeed, there are some

indications that Wehr’s supervisory duties were, in actuality,

minimal. Ms. Merillat submits that, although Wehr was

supposed to function as her supervisor, in reality, she worked

independently, and he did not supervise her. See Merillat

Dep., R.44, Ex.H at 7 (stating, in response to a question

regarding Wehr’s supervisory duties with respect to her:

“I pretty much work on my own. If he had questions, he would

come and ask me. I was always there on time. I didn’t call in

sick.”).

Ms. Merillat’s 2002 evaluation lends some support to

her contention that she continued to have a degree of

supervisory authority over Stevenson. The evaluation states

that, in 2003, Ms. Merillat must pursue “management” and

“leadership” skills so that she may “effectively manage others

on her staff.” R.36, Ex.7 at 1. This statement seems to indicate

that she was charged at least with supervising some of the

duties of Stevenson, the only other materials department

employee. Nevertheless, it is clear that, although neither had

great supervisory authority over other personnel, Wehr did

have more authority than Ms. Merillat.

We conclude that the record, fairly read in its totality,

leads to the conclusion that Wehr and Ms. Merillat did not

have equal levels of responsibility. “Responsibility is

concerned with the degree of accountability required in the

performance of the job, with emphasis on the importance of

the job obligation.” 29 C.F.R. § 1620.17(a). Ms. Merillat has

therefore failed to establish a prima facie case under the Equal

Pay Act.

23a

Appendix A

2. Affirmative Defense

Assuming, arguendo, that Ms. Merillat has established

a prima facie case, the burden would shift to Metal Spinners

to establish one of four statutory defenses. Cullen vy. Indiana

Univ. Bd. of Trs., 338 F.3d at 702. The statutory defenses

occur when the rate of pay is determined “pursuant to (i) a

seniority system; (ii) a merit system; (iii) a system which

measures earnings by quantity or quality of production; or

(iv) a differential based on any factor other than sex.”

29 U.S.C. § 206(d)(1). Metal Spinners submits that the fourth

defense is applicable because the difference in pay between

Wehr and Ms. Merillat was based on factors “other than sex.”

More specifically, Metal Spinners contends that the difference

in pay was based, at least in part, on the difference between

Wehr’s and Ms. Merillat’s educational background and

industry-related experiences. Wehr held a bachelor’s degree

in business administration; Ms. Merillat had only a one-year

legal secretary degree. Wehr had previous experience in the

metal industry, had previously overseen two other purchasing

departments and had experience implementing computer

systems in metals purchasing. Ms. Merillat had not worked

in the metals industry prior to her tenure at Metal Spinners.

The record reveals, therefore, that there are real differences

between the two employees’ experience and education. Under

the EPA, differences in education and experience may be

considered factors other than sex. See Cullen v. Indiana Univ.

Bd. of Trs., 338 F.3d at 702; Dey, 28 F.3d at 1462; Stanley v.

Univ. of Southern California, 13 F.3d 1313, 1322 (9th

Cir.1994) (“Employers may reward professional experience

and education without violating the EPA.”).

24a

Appendix A

Metal Spinners also submits that Wehr’s salary was

determined by market forces. Mr. Wiland noted that, when

he decided to create the position of Vice President of

Procurement and Materials Management, he enlisted the help

of a search firm and was informed that the market rate for

such a position was $65,000-$75,000. Mr. Wiland also

consulted trade journals to determine the appropriate market

rate for such a position. We have held that an employer may

take into account market forces when determining the salary

of an employee. See Cullen v. Indiana Univ. Bd. of Trs., 338

F.3d at 703; Stopka v. Alliance of American Insurers, 141

F.3d 681, 687 (7th Cir.1998) (accepting a difference in pay

as based on a factor other than gender when motivated by

“legitimate market forces”).°

6. We recognize that we must be cautious when analyzing an

employer’s claim that “market forces” justify a higher salary, as

companies may use such a theory “to justify lower wages for female

employees simply because the market might bear such wages.” Taylor

v. White, 321 F.3d 710, 718 (8th Cir.2003); see also Corning Glass

Works v. Brennan, 417 U.S. 188, 205, 94 S.Ct. 2223, 41 L.Ed.2d 1

(1974) (finding a violation of the EPA when a company “took

advantage” of a “job market in which [the employer] could pay

women less than men for the same work”); Siler-Khodr v. Univ. of

Texas Health Sci., 261 F.3d 542, 549 (Sth Cir.2001) (finding an

employer’s markct forces argument “not tenable” when it “simply

perpetuates the discrimination that Congress wanted to alleviate when

it enacted the EPA”). The record does not support the inference that

Metal Spinners took advantage of any kind of market forces that

would permit different pay for a male and a female for the same

position.

25a

Appendix A

Metal Spinners has put forth evidence that the difference

in pay was based on a factor other than sex; specifically, the

difference was based on Wehr’s education, his experience

and the market forces at the time of his hire. Ms. Merillat

has not put forth evidence to place the facts surrounding these

Stated rationales in dispute. Therefore, summary judgment

also was appropriate based on Metal Spinners’ affirmative

defense of the pay differential being based on a “factor other

than sex.” See 29 U.S.C. § 206(d)(1)(iv).

Conclusion

For the forgoing reasons, the judgment of the district

court is affirmed.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

26a

APPENDIX B — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF INDIANA, FORT WAYNE

DIVISION ENTERED SEPTEMBER 19, 2005

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CIVIL NO. 1:04cv193

JANET M. MERILLAT,

Plaintiff,

METAL SPINNERS, INC.,

Defendant.

OPINION AND ORDER

This matter is before the court on a motion for summary

judgment filed by the defendant, Metal Spinners, Inc (“Metal

Spinners”), on May 18, 2005. The plaintiff, Janet M. Merillat

(“Merillat”), responded to the motion on July 19, 2005. Metal

Spinners filed its reply on August 5, 2005.

For the following reasons, Metal Spinners’ motion for

summary judgment will be granted.

27a

Appendix B

Summary Judgment Standard

Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.”

Fed.R.Civ.P. 56(c). However, Rule 56(c) is not a requirement

that the moving party negate his opponent’s claim. Fitzpatrick

v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th

Cir.1990). Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery, against a party

“who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and in

which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett,477 U.S. 317, 322, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986). The standard for granting summary

judgment mirrors the directed verdict standard under Rule

50(a), which requires the court to grant a directed verdict

where there can be but one reasonable conclusion. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505,

91 L.Ed.2d 202 (1986). A scintilla of evidence in support of

the non-moving party’s position is not sufficient to

successfully oppose summary judgment; “there must be

evidence on which the jury could reasonably find for the

plaintiff.” Jd. In Re Matter of Wildman, 859 F.2d 553, 557

(7th Cir.1988); Klein v. Ryan, 847 F.2d 368, 374 (7th

Cir.1988); Valentine v. Joliet Township High School District

No. 204, 802 F.2d 981, 986 (7th Cir.1986). No genuine issue

for trial exists “where the record as a whole could not lead a

rational trier of fact to find for the nonmoving party.” Juarez

v. Ameritech Mobile Communications, Inc., 957 F.2d 317,

28a

Appendix B

322 (7th Cir.1992)(quoting Matsushita Electric Industrial

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.

1348, 89 L.Ed.2d 538 (1986)).

Initially, Rule 56 requires the moving party to inform

the court of the basis for the motion, and to identify those

portions of the “pleadings, depositions, answers to

interrogatories, and admission on file, together with the

affidavits, if any, which demonstrate the absence of a genuine

issue of material fact, Celotex, 477 U.S. at 323. The non-

moving party may oppose the motion with any of the

evidentiary materials listed in Rule 56(c), but reliance on

the pleadings alone is not sufficient to withstand summary

judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir.1988);

Guenin v. Sendra Corp., 700 F.Supp. 973, 974

(N.D.Ind.1988); Posey v. Skyline Corp., 702 F.2d 102, 105

(7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78

L.Ed.2d 336 (1983).

So that the district court may readily determine whether

genuine issues of material fact exist, under Local Rule 56.1,

the moving party is obligated to file with the court a

“Statement of Material Facts” supported by appropriate

citation to the record to which the moving party contends no

genuine issues exist. In addition, the non-movant is- obligated

to file with the court a “Statement of Genuine Issues”

supported by appropriate citation to the record outlining all

material facts to which the non-movant contends exist that

must be litigated. See, Waldridge v. American Hoechst Corp.

et al., 24 F.3d 918 (7th Cir.1994). In ruling on a summary

judgment motion the court accepts as true the non-moving

party’s evidence, draws all legitimate inferences in favor of

29a

Appendix B

the non-moving party, and does not weigh the evidence or

the credibility of witnesses. Anderson, 477 U.S. at 249-251,

106 S.Ct. at 2511. Furthermore, in determining the motion

for summary judgment, the court will assume that the facts

as claimed and supported by admissible evidence by the

moving party are admitted to exist without controversy,

except to the extent that such facts are controverted in the

“Statement of Genuine Issues” filed in opposition to the

motion. L.R. 56.1

Substantive law determines which facts are material; that

is, which facts might affect the outcome of the suit under the

governing law. Anderson, 477 U.S. at 248. Irrelevant or

unnecessary facts do not preclude summary judgment even

when they are in dispute. /d. The issue of fact must be

genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue

of fact, the non-moving party “must do more than simply

show that there is some metaphysical doubt as to the material

facts.” Matsushita, 475 U.S. at 586; First National Bank of

Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th

Cir.1988). The non-moving party must come forward with

specific facts showing that there is a genuine issue for trial.

Id. A summary judgment determination is essentially an

inquiry as to “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is

so one-sided that one party must prevail as a matter of law.”

Anderson, 477 U.S. at 251-252. Finally, the court notes that,

“{iJt is a gratuitous cruelty to parties and their witnesses to

put them through the emotional ordeal of a trial when the

outcome is foreordained” and in such cases summary

judgment is appropriate. Mason v. Continental Illinois Nat'l

Bank, 704 F.2d 361, 367 (7th Cir. 1983).

30a

Appendix B

Discussion

Merillat is a 49 year old female who worked for Metal

Spinners from 1983 through June 3, 2003. Merillat’s job title

was Purchase Manager until December of 2002. From

December of 2002 until her termination, Merillat had the

job title of Senior Buyer. Merillat’s job duties as a Purchase

Manager included complying with company policies;

managing the purchase procurement of metals and materials,

supplies, small tools, and hand tools; accounting for the

previously mentioned items; issuing materials to production

jobs; safe-guarding and accounting for inventory; managing

the effectiveness of suppliers; overseeing the day-to-day

activities as needed; managing and supervising various

administrative assistants and associates; and representing

Metal Spinners in a professional manner.

Olin Wiland (“Wiland”) is the CEO of Metal Spinners.

Wiland made the final determination to terminate Merillat.

Wiland claims that he terminated Merillat because Metal

Spinners was experiencing an economic downturn and

Merillat’s termination was a result of a reduction in force

(“RIF”). In addition, Wiland states that he based his decision

to terminate Merillat on the fact that he felt that her duties

could be absorbed by other employees or a computer program,

Vantage Computer System (“Vantage”). In addition to

Merillat, the Vice President of Sales and Marketing, Patrick

O’Beirne, was also terminated. O’Beirne is a male, who was

under age 40 at the time of his termination.

In December 2002, approximately six months prior to

Merillat’s termination, Craig Wehr (“Wehr”), a male (age

31a

Appendix B

38) was hired as the Vice President of Procurement and

Materials Management. Wehr’s jobs duties included

establishing strategic relationships with metal suppliers and

subsequent outside processing suppliers; supervising the day-

to-day material requirements and activities of the department

and employees; evaluating and documenting supplier ratings

and criteria for delivery, quality, and pricing; and any other

duties as assigned by Wiland. After Wehr was hired, Merillat

had the job title of Senior Buyer and many of her managerial

duties were given to Wehr. Wehr had a base salary of $65,000

while Merillat’s salary was $49,800. Wehr also acted as

Merillat’s supervisor during the six months that they worked

together. Metal Spinners did not subsequently hire anyone

to the position of Purchasing Manager or Senior Buyer.

Merillat’s former job duties are now being performed by the

Vantage program or other employees, including Wehr.

Merillat has sued Metal Spinners under the Age

Discrimination in Employment Act (“ADEA”), alleging age

discrimination, Title VII of the 1964 Civil Rights Act (“Title

VII’), alleging gender discrimination and the Equal Pay Act,

29 U.S.C § 206(d) (“EPA”), alleging unequal pay based on

gender.

With respect to her ADEA claim, Merillat claims that

she was terminated from employment at Meta! Spinners

because of her age; she was 49 years-old at the time of her

termination. The ADEA prohibits an employer from

“discharg[ing] any individual ... because of such individual’s

age.” Schuster v. Lucent Technologies, Inc. 327 F.3d 569,

573 (H1.2003) (citing 29 U.S.C. § 623(a)(1) (2003)). To

establish a claim under the ADEA, a plaintiff-employee must

32a

Appendix B

show that age actually motivated the employer’s decision

and influenced the outcome. /d. (Citing Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097,

147 L.Ed.2d 105 (2000)). The claim may be proven through

direct evidence of the employer’s discriminatory motive, or

through the indirect approach articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817,

36 L.Ed.2d 668 (1973).

To survive a motion for summary judgment, a plaintiff

under ADEA does not need direct evidence, but need only

raise an inference of discrimination. Karitotis v. Navistar

International Transportation Corp., 131 F.3d 672, 676 (7th

Cir.1997). Here, Merillat does not present any direct proof

that Metal Spinner’s decision to terminate her position was

based on age discrimination, therefore the facts must be

analyzed using the McDonnell Douglas burden shifting test.

In order to establish a prima facie case of age discrimination

under this test, Merillat must prove she was (1) in a protected

class (over the age of 40); (2) performing her job to her

employer’s reasonable expectations; (3) suffered an adverse

employment action; and (4) that other substantially younger

employees were treated more favorably than she was.

Bennington v. Caterpillar, Inc., 275 F, 3d 654, 659 (7th

Cir.2001).

The analysis is slightly different in a RIF case, including

a mini-RIF, such as this case, where only a small number of

employees were terminated. When analyzing an age

discrimination case under a mini-RIF, instead of proving the

fourth requirement that a person outside the protected class

was treated more favorably, the plaintiff must instead prove

33a

Appendix B

that her duties were absorbed by persons who were not in

the protected class. Verwey v. Illinois College of Optometry,

43 Fed.Appx. 996, 999 (111.2002).

In the present case, it is undisputed that Merillat was 49

years old at the time of her termination and that Metal

Spinners terminated her employment. However, Metal

Spinners contends that Merillat cannot prove the second and

fourth elements of her prima facie case-that she was meeting

Metal Spinners’ legitimate expectations or that younger

employees were treated more favorably.

With respect to the “meeting legitimate expectations”

element, Wiland, Metal Spinners’ Chief Executive Officer,

testified that Merillat failed to meet his expectations because

she was unable “to entertain strategic concepts and manage

new projects,” because she was unable to adequately

supervise subordinates, because she was not willing “to

accept new challenges,” because she did not get along well

with her co-workers, and because she was unwilling to

implement a corporate-wide computer system. (Wiland Dep.

at 16-17).

Metal Spinners claims that Merillat’s contemporaneous

performance evaluations confirm Wiland’s testimony.

Merillat’s evaluation for the year 2000 suggests that she needs

improvement working with others because of her

“confrontational and demeaning attitude toward suppliers and

coworkers”. (Merillat Dep. Ex. G.) Merillat’s 2000 review

also demonstrates that she often “let clerical tasks impair

her primary responsibilities.” (Merillat Dep. Ex. G.). Finally,

her 2000 review notes that she had expressed displeasure

34a

Appendix B

with management’s decisions to implement new software

programs. (Merillat Dep. Ex. G.).

For the calendar year 2001, Merillat’s review indicates

that while she made improvements in the area of teamwork,

she still had plenty of room for improvement in this area.

(Merillat Dep. Ex. F.). In fact, Merillat’s 2001 review

indicates that she needed to “explore alternatives to her

current methods and practices” to improve efficiency and

profitability. (Merillat Dep. Ex. F.). The review further

indicates that Merillat would be closely scrutinized in 2002

because her department had significant goals that had to be

realized in order to be successful. (Merillat Dep. Ex. F.).

Merillat’s review for the calendar year 2002 indicates

that while Merillat met some of her goals, such as reducing

raw-materials inventory, Merillat still needed to be more

efficient. (Merillat Dep. Ex. E.). In fact, Merillat’s 2002

review indicates that “she had too many redundant/duplicate

business practices that must be challenged (e.g. Al-Net and

certain Excel spreadsheets)” and that these practices must

be eliminated. (Merillat Dep. Ex. E.). Furthermore, Merillat’s

2002 review indicated that she needs continuing

improvement with building rapport with co-workers and

improving her demeanor. (Merillat Dep. Ex. E.).

Metal Spinners argues that Merillat’s reviews all comport

with Wiland’s testimony that Merillat was not meeting his

expectations because she refused to make required changes

and eliminate redundant practices. Metal Spinners also claims

that Merillat’s own testimony confirms the comments on the

review. Merillat admitted that she had difficulties with co-

35a

Appendix B

workers and suppliers. (Merillat Dep. at 59). Merillat also

admitted that she did not agree with Wiland’s decisions about

relationships with suppliers and that certain of her practices

were redundant. (Merillat Dep. at 40, 44, 60). Metal Spinners

concludes that Merillat’s resistance to change during its

troubled times was unacceptable and thus Merillat cannot

establish that she was meeting legitimate expectations.

In response, Merillat points out that in her evaluations

in 2001 and 2002, Wiland scored Merillat as “3” (on a scale

of 1 to 5), which correlated with “Satisfactory/Good;

consistently meets requirements and expectations”. Further,

Merillat states that Wiland’s comments on the evaluations

were communicated to her as “goals to strive for” and not as

areas of failure. (Merillat Aff. at 7 21).

Metal Spinners concedes that the numerical ratings on

Merillat’s reviews for 2001 and 2002 indicates that she was

performing satisfactorily, but contends that the comments

on Merillat’s reviews for these years indicate that Merillat

was performing marginally at best. Metal Spinners argues

that when a company is faced with having to reduce its

number of employees, the company’s legitimate expectations

change somewhat because the company must attempt to do

the same amount of work with less people. Therefore, an

employee whose performance is marginal and whose job

functions can be easily absorbed by others or performed by

a computer may be a good candidate for termination.

Looking at the record as a whole, the court finds that

Merillat has failed to raise an inference that she was

performing her job satisfactorily in the context of a reduction

36a

Appendix B

in force. If Merillat had simply been fired from her job in

the absence of a RIF, then she might have been able to argue

that she was performing satisfactorily enough to not warrant

being fired. But in this case she was not terminated for cause,

but terminated due to reduction in force. This court agrees

with Metal Spinners that what constitutes “satisfactory” work

shifts a bit in a reduction in force case. Thus, while the record

shows that Merillat was performing in the mid-range in some

respects, the reviews also show that Merillat had some

problems that concerned Metal Spinners enough that they

were included in her evaluations. Thus, in this regard, the

record supports Metal Spinners view that Merillat was a non-

satisfactory performer.

Metal Spinners next claims that Merillat also cannot

establish the fourth element of her prima facie case-that

similarly situated, younger employees were treated more

favorably. Metal Spinners points out that as part of the

reduction in force, Patrick O’Beirne, Metal Spinners’ Vice

President of Sales and Marketing, was also terminated, and

his position was eliminated. O’Beirne is a male, who was

under the age of 40 at the time of his termination. Metal

Spinners concludes that of the two office positions eliminated

during the reduction in force, one employee was under 40

and the other over 40, and thus there is no evidence that any

younger employees were treated more favorably than

Merillat.

Merillat does not discuss O’Beirne in her response but,

rather, takes the position that she and Wehr are similarly

situated and that Wehr was treated more favorably. However,

as Metal Spinners makes clear, Wehr and Merillat are not

37a

Appendix B

similarly situated. First, Wehr was Merillat’s supervisor.

Second, Wehr had more education and broader experience

than Merillat, and the record shows that Wiland considered

these factors in making his decision about which positions

should be eliminated. Additionally, Merillat had a history of

job performance problems, including an inability to get along

with co-workers and resistance to change.

The Seventh Circuit Court of Appeals has admonished

plaintiffs that they have a high hurdle to jump in order to

demonstrate that other employees are similarly situated. “[A]

plaintiff must show that there is someone who is directly

comparable to her in all material respects.” Patterson v. Avery

Dennison Corp., 281 F.3d 676, 680 (7th Cir.2002). In making

this determination, courts look at a number of factors. In

certain cases, it is relevant” ‘whether the employees had

comparable experience, education and qualifications,’

provided that the employer took these factors into account

when making the personne] decision in question.” /d. Courts

have also considered employees’ previous job performance

problems in determining whether employees are similarly

situated. See Radue v. Kimberly-Clark Corp., 219 F.3d 612,

618-19 (7th Cir.2000).

This court agrees that Merillat has failed to show that

she was similarly situated to Wehr and that Merillat has failed

to make any showing that a similarly situated person was

treated more favorably. Thus Merillat has failed to establish

a prima facie case.

Even if Merillat could establish a prima facie case of

age discrimination, the burden would shift to Metal Spinners

38a

Appendix B

to show a legitimate, non-discriminatory reason for the

adverse employment action. Conteras v. Suncast Corp., 275

F.3d 756, 760 (7th Cir.2001). If Metal Spinners meets this

burden, then the burden shifts back to Merillat to prove by a

preponderance of the evidence that Metal Spinners’ reason

is merely pretext for discrimination. /d.

A plaintiff can prove pretext either by presenting direct

evidence that a discriminatory reason motivated the

employer’s decision or by presenting evidence that the

employer’s proffered reason is unworthy of credence, thus

raising the inference that the real reason is discriminatory.

Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1310

(7th Cir.1997). The standard requires that the employer not

merely be mistaken in its judgment, but inquires whether

the employer honestly believed its proffered reason for the

discharge. Id.

In the present case, Metal Spinners claims that it

terminated Merillat’s position because it was experiencing

an economic downturn, which is a legitimate, non-

discriminatory reason for discrimination. The record shows

that Metal Spinners had experienced operating losses during

the last half of 2002 and the first half of 2003. In order to

improve the bottom line, Metal Spinners determined that it

needed to make some significant changes, including some

restructuring to help reduce costs. After deciding that it

needed to make some cutbacks, Metal Spinners reviewed the

company structure to determine which positions could be

eliminated. (Wiland Dep. at 93-94). According to Metal

Spinners, Merillat was chosen in part because many of her

duties could be eliminated with the implementation of the

39a

Appendix B

company-wide Vantage computer system. Metal Spinners

also points out that Wiland determined that Merillat was not

meeting his expectations because of her unwillingness to

implement the company-wide Vantage system and her

inability to entertain strategic concepts. Merillat also had a

history of disagreements with her co-workers, and when

deciding whom to terminate, Wiland considered Merillat’s

continued inability to take on supervisory roles and her

inability to get along with co-workers. (Wiland Dep. at 93).

It is clear that these are all legitimate, non-discriminatory

reasons for Merillat’s discharge.

The burden then shifts back to Merillat to prove that

these stated reasons were pretext for discrimination. Pretext

may be proven “directly with evidence that [an] employer

was more likely than not motivated by a discriminatory

reason, or indirectly by evidence that the employer’s

explanation is not credible.” Schuster v. Lucent Technologies,

Inc. 327 F.3d 569, 574 (citing Wade v. Lerner New York, Inc.,

243 F.3d at 323 (7th Cir.2001) (quotation omitted)). A

plaintiff-employee may proceed indirectly by attempting to

show that the employer’s “ostensible justification is unworthy

of credence” through evidence “tending to prove that the

employer’s proffered reasons are factually baseless, were not

the actual motivation for the discharge in question, or were

insufficient to motivate the discharge.” Schuster v. Lucent

Technologies, Inc. 327 F.3d at 575 (citing Testerman v. EDS

Tech. Prods. Corp., 98 F.3d 297, 303 (7th Cir.1996)

(quotations omitted)).

To avoid summary judgment, a plaintiff must do more

than allege that the defendant is lying about its real reasons ~

40a

Appendix B

for termination. The plaintiff must point to specific facts

sufficient to cast doubt on the defendant’s proffered reasons.

See Schuster v. Lucent Tech., Inc., 327 F.3d 569, 578 (7th

Cir.2003). Courts are to examine “whether the employer gave

an honest explanation of its behavior. In other words, if [the

defendant] honestly believed in the nondiscriminatory

reasons it offered, even if the reasons are foolish or trivial or

even baseless, [the plaintiff] cannot prevail.” Jackson vy. E.J.

Brach Corp., 176 F.3d 971, 984 (7th Cir.1999)(internal

quotations and citations omitted). Furthermore, a plaintiff

must present facts “to rebut each and every legitimate, non-

discriminatory reason advanced by the [defendant] in order

to survive summary judgment.” Clay v. Holy Cross Hosp.,

253 F.3d 1000, 1007 (7th Cir.2001). In cases where the

plaintiff was eliminated as part of a reduction in force, the

plaintiff may demonstrate pretext in two ways: (1) showing

that the entire reduction in force was pretext for

discrimination or (2) showing that the reasons for including

the plaintiff in the reduction were pretext. See Paluck v.

Gooding Rubber Co., 221 F.3d 1003, 1012-13 (7th Cir.2000).

Metal Spinners argues that Merillat cannot establish that

its economically motivated reduction in force was merely

pretext for age discrimination. First, Metal Spinners’ financial

information conclusively proves that Metal Spinners was

experiencing a net loss during the first two calendar quarters

of 2003. Merillat has not made any showing whatsoever that

these numbers are pretext. Furthermore, the other person that

was eliminated as part of the reduction in force was O’ Beirne,

who was under age 40.

4la

Appendix B

As Metal Spinners notes, because Merillat cannot prove

that the reduction in force was pretext for discrimination,

she must demonstrate that Metal Spinners’ reasons for

including her in the reduction in force were pretext. Metal

Spinners states that it chose to eliminate Merillat’s position

for three reasons: (1) Wehr had more desirable skills,

education, and experience than Merillat and was more willing

to implement new strategies; (2) many of Merillat’s duties

could be eliminated by the implementation of the Vantage

system; and (3) Merillat had a history of difficulties in

working with co-workers. Metal Spinners states that it chose

to keep Wehr and eliminate Merillat because Wiland believed

that Wehr had better potential to fulfill the new strategic goals

of the company, including strategic relationships with

suppliers. Merillat even admitted that she thought Wehr was

hired primarily to engage in strategic planning. (Merillat Dep.

at 63). Furthermore, Merillat had been very resistant to

making the changes that Wiland felt were necessary for Metal

Spinners’ success. In fact, Merillat testified that she thought

Wiland’s insistence on changing the relationships with

suppliers was “not the right way to go”. (Merillat Dep. at

41). Merillat was also resistant to switching to the Vantage

system. Instead, she continued to do redundant data entry

into two software programs in order to get reports that she

wanted to assist her with her purchasing duties. (Merillat

Dep. at 57-62). When Merillat was terminated, many of her

duties were eliminated by the Vantage compute system. (Wehr

Dep. at 43-65). According to Metal Spinners, many

spreadsheets and reports that Merillat created manually were

done by inputting all the raw data into Vantage and designing

a report to tabulate the raw data in a user-friendly format.

Wehr began this process in August 2003, thus eliminating

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Appendix B

the need for the redundancies created by Merillat. Finally,

Merillat had a history of being difficult with other employees.

In fact, Merillat admitted that she was brusque with others

and that she sometimes got overly excited and upset. (Merillat

Dep. at 59). Moreover, in her annual performance reviews,

Wiland noted that she needed to improve in this area, and

even when she demonstrated improvement, he noted that

there was more room for improvement in this area. (Merillat

Dep. Exs. E, F, and G).

In response to Metal Spinners’ arguments and evidence,

Merillat merely argues that Wiland’s decision was incorrect.

Merillat compares the performance of the metals department

under her supervision with the performance of the metals

department under Wehr’s supervision, and concludes that

Wehr did a poor job and cost the company money. However,

as Metal Spinners notes in reply, these comparisons are all

irrelevant and do not prove that Wiland’s decision was

discriminatory. At most, they suggest that Wiland’s decision

may have been erroneous. The law is clear that Wiland’s

decision need not be the best decision, and it need not turn

out to be correct. Courts only examine “whether the employer

gave an honest explanation of its behavior. In other words,

if [Wiland] honestly believed in the nondiscriminatory

reasons [he] offered, even if the reasons are foolish or trivial

or even baseless, [Merillat] cannot prevail.” Jackson v. E.J.

Brach Corp., 176 F.3d 971, 984 (7th Cir.1999)(internal

quotations and citations omitted). Courts do not sit as super-

personnel departments and are not to second-guess the

decisions of employers. See Giannopoulos v. Brach & Brock

Confectivis, Jae., 109 F.3d 406, 410 (7th Cir.1997).

43a

Appendix B

This court agrees with Metal Spinners that by focusing on

the wrong legal standard, Merillat has failed to demonstrate

that Metal Spinners’ legitimate, non-discriminatory reasons are

pretéxt. As noted, in order to prove pretext, a plaintiff must

present facts “to rebut each and every legitimate, non-

discriminatory reason advanced by the [defendant] in order to

survive summary judgment.” Clay v. Holy Cross Hosp., 253

F.3d 1000, 1007 (7th Cir.2001). Accordingly, Merillat’s ADEA

claim fails for this additional reason.

Metal Spinners next argues that Merillat cannot prove

her gender discrimination claim. It is clear that Merillat does

not have any direct evidence of gender discrimination.

Merillat admitted that Wiland never made any comments

about her gender. (Merillat Dep. at 81). At most, Merillat

claims that Wiland made her remove a cartoon that she had

pinned to her bulletin board. The cartoon depicted two

babies—one female and one male—looking into their

diapers, and the cartoon stated, “Oh, so this is the difference

in our salaries.” Merillat claims that Wiland asked her to

remove this cartoon from her workstation at approximately

the time Wehr was hired. This court agrees with Metal

Spinners that although Wiland was the decision-maker with

respect to Merillat’s termination, this single event can hardly

be evidence of gender discrimination. As Metal Spinners

notes, Wiland had a duty to ensure that the workplace

remained free from hostile or discriminatory remarks. Thus,

asking an employee to remove a cartoon, which could be

construed as hostile towards men, can hardly evidence gender

discrimination. Furthermore, the incident occurred at least

six months prior to the decision to terminate Merillat. There

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Appendix B

is simply no temporal connection between the incident and

Wiland’s decision to terminate Merillat.

Metal Spinners next argues that Merillat cannot establish

a prima facie case of gender discrimination. As with a claim

of age discrimination, the prima facie case is altered slightly

for plaintiffs who were terminated as part of a reduction in

force, and a gender-discrimination plaintiff must establish:

(1) she is a member of a protected class; (2) she was meeting

her employer’s legitimate expectations; (3) she was

discharged; and (4) similarly situated male employees were

treated more favorably. Michas v. Health Cost Controls of

III, Inc., 209 F.3d 687, 693 (7th Cir.2000). Metal Spinners

concedes that Merillat is a woman and that Metal Spinners

terminated her employment. However, Metal Spinners claims

that Merillat cannot establish the second and fourth element

of her prima facie case—that she was meeting Metal

Spinners’ legitimate expectations or that similarly situated

men were treated more favorably.

As discussed above, Merillat was not meeting the

legitimate expectations of Metal Spinners. (Wiland Dep. at

16-17). Additionally, Merillat cannot establish that similarly

situated men were treated more favorably. Although Merillat

contends that Wehr was similarly situated to her, this simply

is not the case. Wehr served as Merillat’s supervisor while

Wehr reported directly to Wiland. Furthermore, Wehr had

duties other than the basic purchasing duties performed by

Merillat. For example, Wehr was responsible for making

Strategic changes to the department, including establishing

new strategic relationships with suppliers. Moreover, as part

of a reduction in force, O’Beirne’s job was also eliminated.

45a

Appendix B

Thus, it is clear that Merillat cannot point to any similarly

situated men who were treated more favorably than she was

treated. In any event, as set forth above, even if Merillat could

establish a prima facie case of gender discrimination, Metal

Spinners has articulated legitimate, non-discriminatory

reasons for Merillat’s termination, and Merillat cannot

establish that such reasons were pretext. Accordingly,

summary judgment will be granted in favor of Metal Spinners

on Merillat’s Title VII claim.

The court will next turn to Merillat’s claim that she was

paid less than Wehr because of her gender. In order to

establish a prima facie case of wage discrimination under

the EPA, Merillat must prove: (1) she was paid less than a

male employee; (2) for equal work requiring substantially

similar skill, effort, and responsibilities, and (3) the work

was performed under similar working conditions. Cullen v.

Indiana Univ. Bd. of Tr., 338 F.3d 693, 698 (7th Cir.2003).

Assuming that Merillat could meet this burden, the burden

then shifts to Metal Spinners to show that the pay differential -

arises from a seniority system, a merit system, a system that

measures earnings by quantity or quality of production, or

any other factor other than gender. Wollenburg v. Comtech

Mfg. Co., 201 F.3d 973, 976 (7th Cir.2000).

Metal Spinners acknowledges that it is undisputed that

Merillat was paid less than Wehr, and that their work was

performed under similar working conditions. However, Metal

Spinners argues that Merillat cannot establish that she did

equal work or that her work required substantially similar

skill, effort, and responsibility. “In determining whether two

jobs are equal, the crucial inquiry is ‘whether the jobs to be

46a

Appendix B

compared have a ‘common core’ of tasks, i.e., whether a

significant portion of the two jobs is identical.’ Once the

plaintiff establishes a common core, the court must ask

whether any additional tasks make the jobs ‘substantially

different” ’. Cullen, 338 F.3d at 698 (internal citations

omitted).

Metal Spinners acknowledges that Wehr and Merillat did

perform a number of similar tasks, including most of the

purchasing department duties. However, Metal Spinners

argues that two facts differentiate Wehr’s job from Merillat’s

job. First, Wehr was charged with much more management

responsibility than Merillat. In fact, states Metal Spinners,

that was the exact reason that Wehr was hired-to perform

management duties that Merillat was reluctant or unable to

tackle. Metal Spinners argues that these duties are “additional

tasks” making Wehr’s job “substantially different” from

Merillat’s job. Jd. More specifically, Wehr was the supervisor

of the purchasing department, and all employees, including

Merillat, reported to Wehr. Second, Wehr played a vital role

in changing Metal Spinners’ supplier relationships. As such,

Wehr was charged with creating strategic relationships with

suppliers in an effort to reduce the cost of metals and reduce

the amount of inventory or working capital invested into the

metals.

The EPA requires courts to examine three separate

elements when comparing jobs: skill, effort, and

responsibility. “Each of these elements must be met

individually to establish a prima facie case.” Cullen, 338 F.3d

at 698. Under the EPA, skill includes factors such as

“experience, training, education, and ability.” /d. At this

47a

Appendix B

point, however, courts look not at the individuals, but at the

positions. In this case, Wehr’s position as Vice President of

Procurement and Materials Management required more

ability than Merillat’s position as Senior Buyer because Wehr

was required to supervise the department and to implement

new strategies to improve supplier relationships. /d.

The court must then look at whether the positions

required equal effort. “Job factors which cause mental fatigue

and stress ... are to be considered in determining the effort

required by the job.” 29 C.F.R. § 1620.16(a). In this case,

Wehr’s position as Vice President of Procurement and

Materials Management required more effort. Although Wehr

and Merillat were both office employees, Wehr’s additional

responsibilities and the ultimate responsibility for the

materials department created more stress. Finally, the court

must consider whether Wehr’s position and Merillat’s

position have equal responsibility. “Responsibility is

concerned with the degree of accountability required in the

performance of the job.” 29 C.F.R. § 1620.17(a). The record

shows that when Wehr was hired as the Vice President of

Procurement and Materials Management, he was charged

with supervisory responsibility for the entire department,

including Merillat. As the Vice President, Wehr had ultimate

responsibility for the success or failure of the department.

Because Merillat has not established that she did equal work

which required equal skill, effort, or responsibility, Merillat

cannot establish a prima facie case under the Equal Pay Act.

Even if Merillat could establish a prima facie case, that

would not be the end of the issue. Rather, if a plaintiff

establishes a prima facie case under the EPA, the burden

48a

Appendix B

then shifts to the defendant to prove that the pay disparity

arises from a seniority system, a merit system, a system that

measures earnings by production, or any factor other than

gender. Wollenburg, 201 F.3d at 976. Metal Spinners sets

forth three reasons for the pay disparity between Merillat

and Wehr: Wehr’s experience, Wehr’s education, and market

forces.

“Even if a man and woman are doing the same work for

different pay, there is no violation if the wage difference

stems from a factor other than sex. Experience is a

nondiscriminatory reason for wage disparity.” Jd. Prior to

joining Metal Spinners, Merillat worked as a legal secretary.

(Merillat Dep. Ex. A.). When she was hired at Metal Spinners

in 1983, Merillat was hired in the purchasing department

although she had no prior experience in purchasing. Wehr

began his career in purchasing in 1988. Although Wehr had

fewer total years of experience than Merillat in purchasing,

_ Wehr had a wider variety of experiences, requiring more skill

and responsibility. For example, Wehr had previously been

the supervisor of at least two purchasing departments with

several individuals reporting directly to him. (Wehr Dep. at

94-95). Wehr also had experience implementing new

computer systems in the purchasing area. (Wehr Dep. at 94-

95). Wehr also had experience in a number of different metal

industries, allowing him to compare and explore new

methods within the metal-spinning industry. Thus, argues

Metal Spinners, Wehr’s experience was more significant in

that he had many years of supervisory responsibility and had

experience with implementation of new materials and

purchasing software.

49a

Appendix B

Metal Spinners also states that it paid Wehr more than

Merillat because he had more education, and education is “a

relevant consideration in determining whether disparate

salaries exist for reasons other than sex.” Cullen, 338 F.3d

at 702. Merillat’s education consisted of an associate’s degree

in the form of a “legal secretarial degree,” which she earned

from the Columbus Business University in 1972. (Merillat

Dep. Ex. A). Merillat also took three courses at IPFW in the

1980s, two in purchasing and one in supervision. (Merillat

Dep. at 14). Wehr, in contrast, had a bachelor’s degree in

business administration from Indiana University. Metal

Spinners claims that Wehr’s degree is clearly relevant to his

job as Vice President of Procurement and Materials

Management in that it gives him an overall familiarity with

accounting, financial forecasting, and other factors relevant

to purchasing raw materials.

Lastly, Metal Spinners argues that the pay disparity

between Wehr and Merillat is justified by the market forces

that existed when Wehr was hired. Jd. When Wiland decided

to create the position of Vice President of Procurement and

Materials Management, he enlisted the help of a search firm.

The firm told Wiland that the going rate for such a position

was approximately $65,000-$75,000. (Wiland Aff. at J 9).

Furthermore, Wiland consulted trade journals to seek

guidance in setting a salary for the new position, which

indicated that Wehr’s starting salary was at the lower end of

the scale for similar positions. (Wiland Aff. at 9 9). Metal

Spinners contends that relying on these factors is permissible,

and they demonstrate that Wiland had legitimate, non-

discriminatory reasons for paying Wehr more than Merillat.

50a

Appendix B

Merillat’s response is fatally weak. Merillat merely cites

to her own testimony, where she asserts that she and Wehr

performed a common core of tasks. Merillat fails to address

tasks that made his job substantially different from her job.

Cullen v. Indiana Univ. Bd. of Tr., 338 F.3d 693, 698 (7th

Cir.2003)(courts must first determine whether jobs have a

common core of tasks and then determine if any additional

tasks make the jobs substantially different). In the present

case, Metal Spinners has documented that Wehr performed

additional tasks which made his job substantially different

from Merillat’s job. Additionally, Metal Spinners has

documented three reasons for the pay disparity between

Merillat and Wehr: Wehr’s experience, Wehr’s education, and

market forces. Consequently, as Metal Spinners has

articulated legitimate reasons (other than gender) for the pay

disparity, Merillat’s EPA claim fails as a matter of law.

Conclusion

Based on the foregoing, Metal Spinners’ motion for

summary judgment is hereby GRANTED.

Entered: September 19, 2005.

s/ William C. Lee

William C. Lee, Judge

United States District Court

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.