In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1192

Richard Thorn and Pat Curran,

Plaintiffs-Appellants,

v.

Sundstrand Aerospace Corporation,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 95 C 50099--Philip G. Reinhard, Judge.


Argued September 23, 1999--Decided March 20, 2000




  Before Posner, Chief Judge, and Manion and Rovner,
Circuit Judges.



  Posner, Chief Judge. Thorn and Curran brought
suit against Sundstrand Corporation under the Age
Discrimination in Employment Act, 29 U.S.C.
sec.sec. 621 et seq. The claims of the two
plaintiffs have little in common; though both
plaintiffs were "riffed" (that is, laid off
pursuant to a reduction in force (RIF)) in 1993,
they worked at very different jobs in different
departments of Sundstrand’s aerospace division
and under different supervisors. These are really
two separate cases. The district court granted
summary judgment for Sundstrand in both. As the
plaintiffs point out, the district court’s
opinions are replete with findings that are not
proper in summary judgment proceedings, for
example, findings that credit fiercely contested
testimony. Continental Casualty Co. v. Anderson
Excavating & Wrecking Co., 189 F.3d 512, 520 (7th
Cir. 1999). But since the review of summary
judgment is plenary, errors of analysis by the
district court are immaterial; we ask whether we
would have granted summary judgment on this
record. Grun v. Pneumo Abex Corp., 163 F.3d 411,
419 (7th Cir. 1998).
  There is much discussion in the briefs of
whether the McDonnell Douglas formula for
determining the propriety of summary judgment in
an employment discrimination case is applicable
to RIFs. The answer, as we reemphasized recently,
is "yes." Bellaver v. Quanex Corp., 200 F.3d 485,
493-94 (7th Cir. 2000); see also Beaird v.
Seagate Technology, Inc., 145 F.3d 1159, 1165
(10th Cir. 1998); LeBlanc v. Great American Ins.
Co., 6 F.3d 836, 842 (1st Cir. 1993). The
McDonnell Douglas formula enables the plaintiff
to shift the burden of production to the
defendant upon presenting satisfactory evidence
that he is a member of the statutorily protected
class (in this case, workers 40 years old or
older), that he is performing his job
satisfactorily, and that (if it is a case of
discharge or layoff allegedly motivated by age
discrimination) he was replaced by a much younger
worker. The defendant must then produce evidence
that it had a noninvidious reason for the
discharge--in an age discrimination case, that
the reason was not the plaintiff’s age. In the
case of a RIF, the usual noninvidious reason is
that the employer, having decided in good faith
that he should reduce the size of his workforce,
included the plaintiff within the class of
workers to be laid off for reasons unrelated to
any discriminatory considerations.



  Nothing about this reason calls for modifying
the McDonnell Douglas formula; but in some RIF
cases the plaintiff is not replaced, and that
calls for a slight modification. The plaintiff
must present satisfactory evidence either that
someone else (in an age-discrimination case,
someone much younger than the plaintiff, O’Connor
v. Consolidated Coin Caterers Corp., 517 U.S.
308, 312-13 (1996); Richter v. Hook-SupeRx, Inc.,
142 F.3d 1024, 1028-29 (7th Cir. 1998); Keathley
v. Ameritech Corp., 187 F.3d 915, 920 (8th Cir.
1999)), is now doing the work he was doing; or,
if the work itself has vanished--maybe the entire
division in which he worked was closed down--that
the employer found a job elsewhere in the company
for a much younger person who had also lost his
job when the division was shut down. Showalter v.
University of Pittsburgh Medical Center, 190 F.3d
231, 235 (3d Cir. 1999); cf. Bellaver v. Quanex
Corp., supra, 200 F.3d at 494; Beaird v. Seagate
Technology, Inc., supra, 145 F.3d at 1165.



  We must apply this standard to the facts viewed
as favorably to the plaintiffs as the record
warrants. We begin with Thorn. A department
manager in the aerospace division, Thorn lost his
position when his department was merged with
another one and a former supervisor of his named
Schneeberger was named head of the enlarged
department. Schneeberger made Thorn a contract
administrator. That was in September 1992. Thorn
was then 61 years old and Schneeberger, who was
in his early forties, told him "we believe you
are only going to be here for another year or
so," although Thorn, whose performance
evaluations were uniformly glowing, had given no
indication of wanting to retire. Thorn’s new job
was computer-intensive and he requested training
on certain software used in the job, but
Schneeberger refused to grant the request even
though other contract administrators had been
given such training and Thorn especially needed
it since the job was a new one for him.



  The RIF was announced the following year.
Sundstrand’s RIF policy required retention of the
more senior employee when two employees (of whom
one had to be let go) had "substantially
equivalent" job performance and skills. For 1993
Thorn was initially rated a 6, while three of the
retained workers in the department, all of whom
were both much younger in years and junior in
service, only had ratings of 5. Schneeberger,
however, reduced Thorn’s rating to 5 shortly
before the RIF, and, after the RIF, altered the
original performance evaluation of Thorn--
prepared by Thorn’s then manager--to eliminate
all the positive statements in the original
evaluation, though there had been no complaints
from customers or coworkers about Thorn’s
performance--or, for that matter, from
Schneeberger.


  One of the contract administrators who was
retained when Thorn was let go was a man in his
thirties named Foots. A problem employee, Foots
was deficient in communication and interpersonal
skills, was inattentive to detail and as a result
made many errors, failed to respond to customer
orders in a timely manner and in consequence
accrued a large number of customer complaints,
was repeatedly criticized by his supervisors,
including Schneeberger, for missing deadlines,
was away from his desk too much, ignored the nuts
and bolts of his job, needed to "get back to the
basics in 1993 and hone his contracting skills,"
and, according to Schneeberger himself, was "not
doing his job, which causes much extra work for
others." Another young person who was retained,
Smiley, was described in the following flattering
terms by Schneeberger: "AVOIDS NEW challenges.
Has stated that she does not want to learn new
customers. No interest in advancing education."
Thorn, the oldest person in his department by 15
years, was among three members of the department
laid off, all of whom were over 40.



  Schneeberger’s stated reason for including Thorn
in the RIF was low productivity. Yet Thorn had
more customers, more complex contracts, and more
orders than any of his peers who were retained.
What is more, in striking contrast to Smiley,
Thorn requested additional work from
Schneeberger, who refused to give it to him.
Though by all objective measures Thorn carried
the heaviest workload in the department, there
were no complaints about the quality of his work.


  Although Schneeberger’s determination of whom to
riff was reviewed by an internal company
committee, the committee’s inquiry was
perfunctory. The committee asked Schneeberger
only about the weaknesses, and not the strengths,
of the employees selected for the RIF, and did
not ask him to compare their strengths and
weaknesses with those of the employees to be
retained, such as the marginal Foots and the
lackadaisical Smiley. The committee, however, at
the insistence of the company’s lawyer, who sat
in on its deliberations, refused to allow
Schneeberger to take notes of the proceeding,
lest Thorn obtain them in litigation. The review
proceeding appears to have been "a liability
shield invented by lawyers." Shager v. Upjohn
Co., 913 F.2d 398, 405 (7th Cir. 1990).



  By presenting satisfactory evidence that he was
performing up to his employer’s expectations
(Sundstrand contested this, but given the
evidence of Schneeberger’s alteration of Thorn’s
personnel records, the company’s position cannot
be treated as established for purposes of summary
judgment) and that when he was riffed his work
was given to much younger employees, Thorn placed
on Sundstrand the burden of presenting
satisfactory evidence that Thorn had been
selected for the RIF for noninvidious reasons.
Sundstrand presented evidence, all right, but it
was sharply contested. Thorn presented credible
evidence that if believed--and a reasonable jury
would be entitled to believe it--showed that
Sundstrand had not riffed Thorn for the reason it
gave, his low productivity; he was the most
productive worker in his department. It does not
follow that he was selected for the RIF because
of his age. But a jury that disbelieves the
reasons given by the employer is free to infer
(though not compelled to do so) that the real
reason was an invidious one, in this case Thorn’s
age. E.g., Jackson v. E.J. Brach Corp., 176 F.3d
971, 984 (7th Cir. 1999); Anderson v. Baxter
Healthcare Corp., 13 F.3d 1120, 1123 (7th Cir.
1994); Fisher v. Vassar College, 114 F.3d 1332,
1338 (2d Cir. 1997) (en banc). Sundstrand’s
motion for summary judgment should have been
denied. In so ruling, we do not predict the
outcome of the trial, and we remind the reader
that our description of the facts was tilted as
favorably to Thorn as the record permits, as of
course we’re required to do in considering a
motion for summary judgment.



  We move to Curran’s case, which is much weaker.
An engineer engaged primarily in developing and
marketing new technologies, he spent most of his
time on a product called a vortex turbine, but he
was taken off that project shortly before the
RIF, which hit him at the age of 50. The RIF
required a reordering of priorities, and a
decision was made to focus on current products,
making Curran a prime candidate for being riffed.
The younger person, Jacobs by name, who was
retained Curran claims because he was younger,
was less experienced than Curran and (unlike
Curran) lacked an engineering degree. But he was
working on products that Sundstrand, although it
wanted to deemphasize them, already marketed and
intended to continue marketing. Curran argues
that the department head, Linton, removed him
from the vortex-turbine project in order to set
him up for the RIF, but this is rank speculation.
Anyway, the vortex turbine, being at least a year
away from going into production, didn’t fit into
Sundstrand’s plan to focus on immediately
profitable products. So even if Curran had still
been working on the project, he might well have
been riffed. Because he thus was not
"substantially equivalent" in the relevant
respects to Jacobs, the younger worker who was
retained, his supplemental claim of breach of
contract, which is based on the language of the
RIF policy (which Sundstrand for purposes of the
appeal concedes is a binding contract), also
fails.



  Curran lays great stress, understandably but in
the end unavailingly, on what in retrospect was a
foolish tactic by Sundstrand’s lawyers. When
Linton was asked at his deposition what criteria
his superiors had told him to employ in making
selections for the RIF, he answered that he was
to decide "which people did we feel have the
longest-term potential for those whose product
lines we were eliminating." Later--after Curran
had pointed to the quoted passage as being
evidence of age discrimination (because of the
reference to "longest-term potential," which
Curran treats as a synonym for "youngest")--
Linton submitted an errata sheet in which he
sought to change the quoted words to "which
people were associated with the products that had
the longest term potential versus those whose
product lines we were eliminating." Thus the
words "did we feel have the longest-term
potential for" were to be replaced by "were
associated with the products that had the longest
term potential versus." The reason given for
making the correction was that the original
language was "garbled." Garbled it was, though it
was not an error in transcription; not only did
the court reporter state in an affidavit that
Linton’s testimony was correctly transcribed, but
Linton could not have remembered the exact words
that he had stated months before at his
deposition. Had he said that "for" was really
"versus," it is possible that he might have been
correcting an error in transcription. But it is
unreasonable to suppose that he remembered that
he had said "were associated with the products
that had the longest term potential versus"
rather than "did we feel have the longest-term
potential for."



  What he tried to do, whether or not honestly,
was to change his deposition from what he said to
what he meant. Though this strikes us as a
questionable basis for altering a deposition, see
Greenway v. International Paper Co., 144 F.R.D.
322, 325 (W.D. La. 1992) ("a deposition is not a
take home examination"), it is permitted by Fed.
R. Civ. P. 30(e), which authorizes "changes in
form or substance" (emphasis added); Podell v.
Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d
Cir. 1997), though fortunately the rule requires
that the original transcript be retained (this is
implicit in the provision of the rule that any
changes made by the deponent are to be appended
to the transcript) so that the trier of fact can
evaluate the honesty of the alteration. We also
believe, by analogy to the cases which hold that
a subsequent affidavit may not be used to
contradict the witness’s deposition, e.g.,
Piscione v. Ernst & Young, L.L.P., 171 F.3d 527,
532-33 (7th Cir. 1999); Bank of Illinois v.
Allied Signal Safety Restraint Systems, 75 F.3d
1162, 1168-69 (7th Cir. 1996); Russell v. Acme-
Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995);
Schiernbeck v. Davis, 143 F.3d 434, 437-38 (8th
Cir. 1998); Raskin v. Wyatt Co., 125 F.3d 55, 63
(2d Cir. 1997); cf. Sullivan v. Conway, 157 F.3d
1092, 1096-97 (7th Cir. 1998), that a change of
substance which actually contradicts the
transcript is impermissible unless it can
plausibly be represented as the correction of an
error in transcription, such as dropping a "not."



  Sundstrand didn’t help itself by Linton’s
altering his deposition. If at trial Curran tried
to use Linton’s garbled phrase to impeach his
testimony, or as an admission, Linton could
explain what he meant, and it would be for the
jury to decide whether the explanation was
truthful. He could not remove the issue from the
jury by altering the transcript of his
deposition. The tactic was foolish rather than
merely otiose because it suggests guilty
knowledge and merely riveted the plaintiff’s
attention upon a passage that would otherwise
have been dismissed by the trier of fact as
terminally muddled. But a reasonable jury could
not infer from Sundstrand’s clumsy handling of
the muddle that Curran was a victim of age
discrimination. Curran’s theory is that what
Linton was trying to say was that he was trying
to retain those employees, such as Jacobs, who
had the longest-term potential--that is, were
youngest--among those working on products that
were being deemphasized (for Linton himself
admitted that "deemphasizing" would have been a
more accurate term for the fate of these products
than "eliminating"). But neither in semantics nor
in economics is having "longest-term potential" a
synonym for being "youngest."



  To explain, in making RIF decisions an employer
is free to decide which employees are likeliest
to contribute most to the company over the long
haul. Furr v. Seagate Technology, Inc., 82 F.3d
980, 987 (10th Cir. 1996); Watkins v. Sverdrup
Technology, Inc., 153 F.3d 1308, 1317 (11th Cir.
1998); Brocklehurst v. PPG Industries, Inc., 123
F.3d 890, 896 (6th Cir. 1997). It would be a
foolish RIF that retained an employee who was
likely to quit anyway in a few months while
riffing one likely to perform well for the
company over a period of years. High turnover of
skilled workers can be very harmful to a company.
The worker who leaves may take with him trade
secrets valuable to a competitor or the benefits
of specialized training that the employer had
given him, at some expense, in the hope of
recouping the expense in the worker’s superior
productivity now to be enjoyed by another
employer. Since younger employees tend to be more
mobile than older ones, there is no basis for an
inference that employers interested in the long-
term potential of an employee prefer young to
old. But without such an inference Curran has no
case, and we conclude therefore that summary
judgment was properly granted for Sundstrand in
his case. Of course, the fact that Sundstrand’s
lawyer permitted or encouraged Linton to try to
change his deposition suggests that maybe Linton
really did mean "youngest" by "longest-term," but
this is too thin a thread on which to hang a
verdict for him. When a defendant seeks summary
judgment, the court must decide whether, if the
record compiled in the summary judgment
proceeding were a trial record, a reasonable jury
could return a verdict for the plaintiff.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The contretemps over the altered
deposition would not be enough by itself to
justify a verdict for Curran, and there is
nothing else.



  The judgment in Thorn’s case is reversed and the
case remanded for trial, while the judgment in
Curran’s case is affirmed.
