In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3508

Robin Hoffmann,

Plaintiff-Appellant,

v.

PRIMEDIA Special Interest Publications, f/k/a
PJS Publications, Inc., a Foreign
Corporation,

Defendant-Appellee.

Appeal from the United States District Court
for the Central District of Illinois, Peoria Division.
No. 98 C 1077--Michael M. Mihm, Judge.

Argued April 13, 2000--Decided June 21, 2000



  Before Harlington Wood, Jr., Flaum, and Diane
P. Wood, Circuit Judges.

  Flaum, Circuit Judge. Plaintiff Robin
Hoffmann sued Primedia Special Interest
Publications ("Primedia") under the Age
Discrimination in Employment Act (ADEA),
29 U.S.C. sec. 621 et seq. The district
court granted the defendant’s motion for
summary judgment and denied the
plaintiff’s motion to alter or amend that
judgment. For the reasons stated herein,
we affirm.

Background

  Hoffmann was a Circulation Marketing
Manager at Primedia, responsible for
developing strategies to meet Primedia’s
revenue and expense objectives and
forimproving performance of Primedia’s
circulation department. In July 1997,
Steven Elzy became President of Primedia,
with the objective of turning around the
poor performance of the company. On
August 22, 1997, Hoffmann was discharged
on the instruction of Elzy. She was 42
years old at the time of her discharge.

  Hoffmann brought an action against
Primedia under the ADEA, alleging that
she had been discharged because of her
age. Primedia contended that Elzy let
Hoffmann go because of her negative
attitude, and Primedia filed a motion for
summary judgment claiming that Hoffmann
failed to establish a prima facie case of
age discrimination. Among other things,
Primedia pointed to the fact that
Hoffmann’s replacement was 39 years old--
only three years younger than Hoffmann.

  On July 20, 1999, the district court
granted Primedia’s motion for summary
judgment. The court found insufficient
Hoffmann’s direct evidence of age
discrimination. It then went on to reject
Hoffmann’s attempt to shift the burden to
Primedia under a McDonnell Douglas
analysis, finding that Hoffmann failed to
make out a prima facie case because
Hoffmann was not replaced by someone
significantly younger. Hoffmann filed a
Rule 59(e) Motion to Alter or Amend
Judgment, which the district court
denied. Hoffmann now appeals.

Discussion

  The ADEA prohibits an employer from,
among other things, discharging an
employee over 40 years old because of
that individual’s age. 29 U.S.C. sec.sec.
623(a), 631(a). Rather than pressing a
claim based on direct evidence of
agediscrimination, at this stage Hoffmann
relies on the McDonnell Douglas burden-
shifting method of proof. See Reeves v.
Sanderson Plumbing Products, Inc., 2000
WL 743663, at *9 (U.S. June 12, 2000).
Under this method, to establish a prima
facie case of age discrimination under
the ADEA and thereby shift the burden to
the defendant to put forth a non-
discriminatory reason for the employment
action, Hoffman must show that: (1) she
was in the protected age group of persons
40 or older; (2) she was performing her
job satisfactorily; (3) she was
discharged; and (4) substantially younger
employees were treated more favorably.
See Cianci v. Pettibone Corp., 152 F.3d
723, 728 (7th Cir. 1999); Hartley v.
Wisconsin Bell, Inc., 124 F.3d 887, 892
(7th Cir. 1997). The district court found
that Hoffmann did not meet the fourth
requirement.

  In contexts such as this, where a single
employee is let go and another individual
is hired instead, the fourth requirement
means showing that the discharged worker
was replaced with someone substantially
younger. See Richter v. Hook-SupeRx,
Inc., 142 F.3d 1024, 1028 (7th Cir. 1998)
("a plaintiff must show that she was
replaced by someone ’substantially
younger,’ although not necessarily
outside the protected class") (citations
omitted). This rule stems from the simple
premise, articulated recently by the
Supreme Court, that "an inference [of age
discrimination] cannot be drawn from the
replacement of one worker with another
worker insignificantly younger." O’Connor
v. Consolidated Coin Caterers Corp., 517
U.S. 308, 313 (1996). Contrary to the
assertions of Hoffmann’s counsel that
this rule has not been applied to
situations like Hoffmann’s, this Court
has specifically instructed that:

In situations involving the simple
termination of a single employee,
normally the employee must establish that
the employer sought a younger replacement
for him. . . . [A]n employer who
discharges a protectedemployee and either
hires or retains younger employees "to
fill positions for which the older
employee was qualified" bears the burden
of explaining its actions. The younger
employees "need not be outside
theprotected class, i.e., under the age
of forty," but they should be
substantially--i.e., at least ten years--
younger than the terminated employee.

Miller v. Borden, Inc., 168 F.3d 308, 313
(7th Cir. 1999) (citations omitted).

  As this statement of the prima facie
burden for cases such as this makes
clear, "we consider a ten-year difference
in ages (between the plaintiff and her
replacement) to be presumptively
’substantial’ under O’Connor," Hartley,
124 F.3d at 893, and conversely consider
a difference of less than ten years
presumptively insubstantial. See id.
(holding that a six-to-seven year age
difference was insufficient); see also
Richter, 142 F.3d at 1029 (holding that
the seven-year age difference between a
52-year-old and 45-year-old replacement
was a presumptively insubstantial gap).
There may be situations where a
difference of less than ten years is
substantial, and we have also previously
made clear that "[i]n cases where the
disparity is less, the plaintiff still
may present a triable claim if she
directs the court to evidence that her
employer considered her age to be
significant." Hartley, 124 F.3d at 893.
Hoffmann, however, presents no such
evidence to overcome the presumption./1

  Based on the record in this case, the
three-year age difference between
Hoffmann and her replacement fails the
fourth requirement of a McDonnell Douglas
showing under the ADEA. We agree with the
district court that there is no evidence
from which a reasonable inference may be
drawn that age was the determinative
factor in the decision to let her go. See
Reeves v. Sanderson Plumbing Products,
Inc., 2000 WL 743663, at *5 (U.S. June
12, 2000); Richter, 142 F.3d at 1027 ("To
succeed in an ADEA claim, a plaintiff
must establish that he would not have
received adverse treatment but for his
employer’s motive to discriminate on the
basis of his age."). Because Hoffmann has
failed to make out a prima facie case of
age discrimination, we need not proceed
further. See Cianci, 152 F.3d at 728.

Conclusion

  For the reasons stated herein, we AFFIRM
the decision of the district court.

FOOTNOTES

/1 Hoffmann argues that the district court failed to
give credence to "statistical evidence" she had
submitted to the district court in an attempt to
show that Primedia employees under the age of 40
were systematically treated better than those
over 40. In its order granting summary judgment
in favor of Primedia, the court stated that this
proffer was insufficient to create a disputed
issue of material fact because Hoffmann failed to
identify any baseline against which her figures
should be measured. Hoffmann subsequently filed
a Rule 59(e) Motion to Alter or Amend Judgment,
which the district court denied, concluding that
"there is absolutely no way that a reasonable
trier of fact could conclude that Hoffmann’s
’statistical evidence’ indicated intentional
discrimination on the part of Primedia." We agree
that not only do Hoffmann’s figures fail to raise
the inference that workers over 40 are
discriminated against at Primedia, but they fail
to overcome the contrary presumption--created by
the fact that her replacement was almost the same
age--that age had nothing to do with Primedia’s
actions.
