In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1361

James Bennington,

Plaintiff-Appellant,

v.

Caterpillar Incorporated,

Defendant-Appellee.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99 C 1111--Joe B. McDade, Chief Judge.

Argued November 30, 2001--Decided December 28, 2001



  Before Flaum, Chief Judge, and Cudahy and
Manion, Circuit Judges.

  Flaum, Chief Judge. The appellant,
James Bennington, has filed the instant
appeal contesting the district court’s
grant of summary judgment against him and
the district court’s refusal to grant an
extension of discovery. For the reasons
stated herein, we affirm the decisions of
the district court.

I.   BACKGROUND

  James Bennington was born in 1944 and
began his employment with Caterpillar,
Inc. ("Caterpillar") in 1965. He
continued to work with that company until
1998. In 1987, after several years of
exemplary performance, Caterpillar made
Bennington a manufacturing superintendent
in its Mossville, Illinois facility. In
the mid-1990s, Caterpillar changed
Bennington’s title to unit manager.
During the course of the 1990s,
Bennington was transferred to different
areas within the Mossville plant. In
1997, Bennington was transferred to
Building DD on the Mossville plant and
was charged with the supervision of the
first shift of two assembly lines. When
Bennington was first transferred to this
position, his immediate supervisor was
Jerry Holloman. Holloman was responsible
to Paul Wroblewski, then the Operations
Manager at the Mossville facility.

  The events giving rise to the current
dispute began when Caterpillar
implemented an initiative to bring a
"team-based management structure" to the
plant where Bennington worked. That
initiative was entitled "Vision, Values,
and Time." While Caterpillar was
implementing its initiative, it was also
in the process of closing down one of the
buildings on the Mossville facility and
transferring employees from that facility
to the building where Bennington worked.
Bennington supervised this relocation
process and retained his other
responsibilities.

  In December 1997, Jerry Holloman retired
from Caterpillar. Prior to his
retirement, however, he completed a
performance evaluation for Bennington. On
the whole, Holloman’s evaluation of
Bennington was quite favorable. However,
the evaluation also stated that
Bennington should have used certain
tools, "8D teams or FMEA activities," in
his capacity as a supervisor. Caterpillar
claims that these comments were critical
of Bennington and Bennington contends
that they merely set forth goals for the
coming year. While Holloman characterized
his evaluation of Bennington as an
"extremely good review," Caterpillar man
agement reviewed the report and found
that it did not adequately reflect its
concerns with Bennington’s performance.
Therefore, Holloman’s supervisor, Paul
Wroblewski, made several changes to
Bennington’s review.

  As a result of these changes, Bennington
was eventually given a very negative
performance evaluation for 1997.
Specifically, the evaluation noted that
Bennington avoided taking responsibility
for his results, that inventory,
accuracy, quality, and safety in
Bennington’s area of supervision did not
meet appropriate standards and that
Bennington’s efforts at implementing
team-based initiatives were minimal.
Caterpillar supervisors also created a
supplemental evaluation criticizing
Bennington for his failure to apply
leadership skills to problems arising in
the area he supervised.

  In February 1998, Caterpillar decided to
eliminate Bennington’s position.
Caterpillar contends that this decision
was consistent with its teamwork
initiative. Although the company did
eliminate Bennington’s position, it did
not terminate Bennington. Instead,
Bennington was transferred, along with
other managers whose positions had been
eliminated, to a unit entitled the
"Special Projects Group." According to
Bennington, the Special Projects Group
was routinely referred to by his
supervisors as "waste management" and his
duties there were minimal. Bennington re
mained at the same rate of pay after this
transfer, however, he was assigned to an
empty work area and was told to look for
work.

  Shortly after this transfer, Bennington
told his supervisors that he was
contemplating retirement. According to
Bennington, he felt undermined by his
1997 review and the elimination of his
position. Bennington announced his
retirement in April 1998 and officially
retired that July.

  After his retirement, Bennington filed
suit against Caterpillar. Bennington’s
complaint alleged that Caterpillar
violated the Age Discrimination in
Employment Act ("ADEA") by transferring
him, by constructively discharging him,
and by creating a hostile work
environment. Bennington also alleged that
Caterpillar intentionally inflicted
emotional distress upon him.

  After the discovery deadline had passed,
Bennington filed a motion for an
extension. This motion was denied. Cater
pillar then filed a motion for summary
judgment, which was briefed by the
parties. After briefing of the motion,
the district court granted summary
judgment against Bennington on all
counts. Bennington filed the instant
appeal.

II.   DISCUSSION

  We review a district court’s grant of
summary judgment de novo, viewing all the
facts and drawing all reasonable
inferences in the non-moving party’s
favor. Spearman v. Ford Motor Co., 231
F.3d 1080, 1084 (7th Cir. 2000). We
exercise an abuse of discretion standard
over a district court’s refusal to reopen
discovery. See, e.g., Kalis v. Colgate-
Palmolive Co., 231 F.3d 1049, 1056 (7th
Cir. 2000).

A.   Grant of Summary Judgment

  The district court granted summary
judgment on all four counts of
Bennington’s suit. As will be described
more fully below, we agree with the
district court’s disposition of
Bennington’s claims, as Bennington has
failed to create a factual record that
would permit his case to go to trial.


  1. Prima Facie Case of Age
Discrimination

  In ruling on Caterpillar’s summary
judgment motion, the district court
concluded that Bennington failed to
establish a prima facie case of age
discrimination by Caterpillar. Bennington
has conceded that he presented no direct
evidence that Caterpillar discriminated
against him because of his age./1
Accordingly, his claim must be analyzed
pursuant to the indirect burden-shifting
approach set forth under McDonnell
Douglas Corp. v. Green, 411 U.S. 792
(1973). Under the McDonnell-Douglas test,
in order to establish a prima facie case
of age discrimination, a plaintiff must
prove that he was: (1) in a protected
class; (2) performing his job
satisfactorily; (3) the subject of an
employment action that was materially
adverse; and (4) that other substantially
younger and similarly situated employees
were treated more favorably than the
plaintiff. See Gonzalez v. Ingersoll
Milling Machine Co., 133 F.3d 1025, 1031
(7th Cir. 1998). The district court
determined that Bennington failed to
state a prima facie case because he could
not satisfy the fourth element of the
above test: that other substantially
younger and similarly situated employees
were treated more favorably than the
plaintiff. Having reviewed the record
below, we agree with the district court’s
decision.

  At the outset, we state that the record
is bereft of facts supporting
Bennington’s claims of age
discrimination. We must base our review
only upon those facts that were a part of
the record before the court below. Plakas
v. Drinski, 19 F.3d 1143, 1147 (7th Cir.
1994). When we examine that record, we
find that Bennington has offered proof
that only one other similarly situated
and younger employee was given
preferential treatment. That employee,
Perry Lubber, took over Bennington’s
responsibilities when he was transferred
to the Special Projects Unit and was only
five years younger than Bennington./2
Generally, when both the plaintiff and
those allegedly favored over him are
within the same protected class, "the
prima facie case under the ADEA
require[s] a sufficient disparity in
ages." Hartley v. Wisconsin Bell, Inc.,
124 F.3d 887, 892 (7th Cir. 1997). This
court "consider[s] a ten year difference
in ages (between the plaintiff and [his]
replacement) to be presumptively
’substantial.’" Id. at 893. In Hartley,
this court concluded that a seven-year
difference between the plaintiff and the
employees allegedly favored over her was
not significant enough to present a prima
facie case under the ADEA. Just as in
Hartley, the five-year difference in age
between both Bennington and Lubbers is
not substantial enough (in and of itself)
to set forth a prima facie age
discrimination case.
  In cases where the age difference
between the plaintiff and the individual
treated more favorably is less than ten
years, "the plaintiff still may present a
triable claim if [he] directs the court
to evidence that [his] employer
considered [his] age to be significant."
Id. Bennington has not presented any
evidence that Caterpillar’s decisions
affecting his employment were motivated
by his age. Even assuming, as we must,
that the Special Projects Unit to which
Bennington and other managers were
assigned had been derisively referred to
as "waste management" by Caterpillar
higher-ups, or that Bennington’s review
was changed improperly, such comments or
actions do not (without more facts)
evidence hostility on the basis of age.
The insubstantial difference in age
between Bennington and Lubbers and the
absence of discriminatory animus by
Caterpillar supports the district court’s
grant of summary judgment on this claim.


  2.   Constructive Discharge

  The district court’s ruling on
Bennington’s constructive discharge can
be affirmed largely for the same reasons
as set forth above: the record contains
no evidence of Caterpillar’s
discriminatory animus towards Bennington.
To establish that he was constructively
discharged, Bennington must show that
"his working conditions were so
intolerable that a reasonable person
would have been compelled to resign."
Simpson v. Borg-Warner Automotive, Inc.,
196 F.3d 873, 877 (7th Cir. 1998).
Bennington must also demonstrate that the
working conditions were intolerable
because of impermissible age
discrimination. Id.; see also Drake v.
Minnesota Mining & Mfg. Co., 134 F.3d
878, 886 (7th Cir. 1998). Bennington has
failed to link the conditions of his
employment to any age-related bias on the
part of Caterpillar. Accordingly, we
affirm the decision of the district
court.


  3.   Hostile Work Environment

  Bennington asserts that he was subjected
to a hostile work environment because of
his age. This circuit has assumed,
without deciding, that plaintiffs may
bring hostile environment claims under
the ADEA. See Halloway v. Milwaukee
County, 180 F.3d 820, 827 (7th Cir.
1999). We will do likewise here because
we conclude that, even if such a hostile
work environment claim could be brought
under the ADEA, Bennington could not
prevail.

  In order to succeed on a hostile work
environment claim, "the environment must
be both objectively and subjectively
offensive, one that a reasonable person
would find hostile or abusive, and one
that the victim did in fact perceive to
be so." Faragher v. City of Boca Raton,
524 U.S. 775, 787 (1998). To determine
the hostility of an environment, a court
must examine the "frequency of the
discriminatory conduct; its severity;
whether it is physically threatening or
humiliating; or a mere offensive
utterance . . . ." Id. at 787-88. As
stated above, Bennington has failed to
produce evidence that the alleged
offensive conduct was discriminatory.
Based upon the record before us,
Caterpillar officials may have been rude
or unfair to Bennington. However, absent
more facts this conduct does not rise to
the level of legally redressible
discrimination.


  4. Intentional Infliction of Emotional
Distress

  We also affirm the district court’s
disposition of Bennington’s Illinois
common law claim for intentional
infliction of emotional distress. Under
Illinois law, the elements of a claim for
intentional infliction of emotional
distress are as follows: (1) the conduct
involved must be truly extreme and
outrageous; (2) the defendant must either
intend the infliction of emotional
distress or know that there is a high
probability that his conduct will result
in such distress and; (3) the conduct
must in fact cause severe emotional
distress. McGrath v. Fahey, 553 N.E.2d
806, 809 (Ill. 1988). In addition,
Bennington’s distress must be "so severe
that no reasonable man could be expected
to endure it." Id.

  Apart from the bald assertions contained
in Bennington’s complaint, there is scant
evidence that Caterpillar intended to
inflict distress upon him. Furthermore,
Bennington has proffered no evidence
(either in the form of medical
documentation or deposition testimony)
that he has in fact suffered from any
form of emotional distress. Because
Bennington "cannot leave it to this court
to scour the record in search of factual
or legal support for" his allegations, we
affirm the decision of the district court
with respect to this claim as well.
Colburn v. Trustees of Indiana Univ., 973
F.2d 581, 593 (7th Cir. 1992).

B.   Refusal to Reopen Discovery

  Lastly, Bennington contends that the
district court erred in not reopening
discovery in this case after the deadline
had expired. Prior to the district
court’s decision on this matter, this
case had a rather lengthy history.
Bennington’s first counsel was replaced
by a substitute counsel and the discovery
deadline was extended. After this seventh
month extension was granted and the next
discovery deadline expired, Bennington’s
second counsel moved to reopen discovery.
At oral argument, counsel for Bennington
conceded that after the discovery
extension was granted he "probably was
not as diligent as [he] should have been
in pursuing discovery. . . ." In light of
the procedural meanderings of this case
(two separate counsel and at least one
discovery extension), this court cannot
conclude that the district court acted
outside the bounds of its discretion in
denying Bennington’s motion.

III.   CONCLUSION

  For the foregoing reasons, we Affirm the
decisions of the district court.

FOOTNOTES

/1 According to the precedent of this court, direct
evidence is "evidence that can be interpreted as
an acknowledgment of discriminatory intent by the
defendant or its agents." Hill v. Burrell Commu-
nication Group, 57 F.3d 665, 667 (7th Cir. 1995)
(internal citations omitted).

/2 Lubber, as an individual over forty years of age,
was also in a protected class pursuant to the
ADEA.
