In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3661

Richard M. Kadas,

Plaintiff-Appellant,

v.

MCI Systemhouse Corporation,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 5181--Matthew F. Kennelly, Judge.

Argued April 24, 2001--Decided June 19, 2001



  Before Posner, Evans, and Williams,
Circuit Judges.

  Posner, Circuit Judge. The district
court granted summary judgment for the
plaintiff’s former employer in this age
discrimination in employment suit, and
the plaintiff appeals. The plaintiff, age
54 when he was hired in 1997, was an
information technology consultant with
extensive experience in the health care
industry, and he was hired specifically
to service a large health care client of
the defendant. Just a few weeks after the
plaintiff was hired, the defendant lost
the client, and several months later it
decided to discontinue its health care
practice. At about the same time it
instituted a RIF (reduction in force)
targeted on employees who had little
prospect for billable work in the
forthcoming months, a category that
included the plaintiff. Accordingly he
was terminated in January of 1998 (after
having been employed by the defendant for
only five months) along with two other
employees out of a total of 32 in the
plaintiff’s department, of whom 27,
including the three who were riffed, were
at least 40, the age at which the
protections of the federal age
discrimination law kick in.

  A supervisory employee who happened to
have his own suit for age discrimination
and retaliation pending against the
defendant testified by deposition that
the defendant had an age-discriminatory
"culture" and that the plaintiff and
other older workers were not given the
same opportunities as younger workers for
choice assignments. This kind of vague,
speculative evidence by an employee with
his own axe to grind has too little
probative value to make out a prima facie
case of discrimination, cf. Hoffman v.
MCA, Inc., 144 F.3d 1117, 1122 (7th Cir.
1998); United States v. Hooks, 848 F.2d
785, 797 (7th Cir. 1988); Wexler v.
White’s Fine Furniture, Inc., 246 F.3d
856, 862 (6th Cir. 2001); Feliciano De La
Cruz v. El Conquistador Resort & Country
Club, 218 F.3d 1, 5 (1st Cir. 2000), and
we must see whether there is anything
else. One thing else is that according to
this same employee, the head of the
plaintiff’s department, who picked the
employees including the plaintiff in that
department to be riffed, had once said to
this witness, "Bob, you know how hard it
is to sell these guys and they just don’t
look like they work as hard." The meaning
of the statement is obscure; but even if
it expresses "ageist" prejudice, it was
made at an unspecified date before the
RIF, and there is nothing, not even
coincidence of time, to tie it to the
RIF. Fortier v. Ameritech Mobile
Communications, Inc., 161 F.3d 1106, 1112
(7th Cir. 1998); Eiland v. Trinity
Hospital, 150 F.3d 747, 751 (7th Cir.
1998); Kennedy v. Schoenberg, Fisher &
Newman, Ltd., 140 F.3d 716, 724 (7th Cir.
1998).

  All that leaves is statistical evidence,
namely that all three of the riffed
employees were at least 40. But only five
of the 32 employees in the department
were under 40, which means that, assuming
the choice of employees to riff was
random, there was a 59 percent chance
that all three riffed employees would be
at least 40. See David Freedman, Robert
Pisani & Roger Purves, Statistics 228-30
(3d. ed. 1998). The statistical evidence
tendered by the plaintiff thus actually
favors the defendant.

  So the plaintiff had no case (and for
the further reason that the employer had
a compelling noninvidious ground for
terminating the plaintiff--the work it
had hired him to do, the work for which
his experience qualified him, had dried
up within weeks of his arrival), and
summary judgment was rightly granted for
the employer. But we wish to make three
observations about the record, for such
bearing as they may have on future
discrimination cases.

  1. The supervisor who riffed the
plaintiff was even older than the
plaintiff--56--and dicta in a number of
cases suggest that this is a factor that
should weigh heavily against a finding of
age discrimination. See, e.g., Fairchild
v. Forma Scientific, Inc., 147 F.3d 567,
572 (7th Cir. 1998); Mills v. First
Federal Savings & Loan Ass’n, 83 F.3d
833, 842 (7th Cir. 1996); Wexler v.
White’s Fine Furniture, Inc., supra, 246
F.3d at 866-67; Brown v. CSC Logic, Inc.,
82 F.3d 651, 658 (5th Cir. 1996);
Rothmeier v. Investment Advisers, Inc.,
85 F.3d 1328, 1337 (8th Cir. 1996); see
also Elrod v. Sears, Roebuck & Co., 939
F.2d 1466, 1471 (11th Cir. 1991); but cf.
Rea v. Martin Marietta Corp., 29 F.3d
1450, 1456 (10th Cir. 1994). On
reflection, we offer the counterdictum
that the relative ages of the terminating
and terminated employee are relatively
unimportant. For it is altogether common
and natural for older people, first, to
exempt themselves from what they believe
to be the characteristic decline of
energy and ability with age; second, to
want to surround themselves with younger
people; third to want to protect their
own jobs by making sure the workforce is
not too old, which might, if "ageist"
prejudice is rampant, lead to RIFs of
which they themselves might be the
victims; and fourth, to be oblivious to
the prejudices they hold, especially
perhaps prejudices against the group to
which they belong. We emphatically
rejected the "same-actor inference" in
the race-discrimination setting in
Johnson v. Zema Systems Corp., 170 F.3d
734, 745 (7th Cir. 1999), and our
conclusion there applies with equal force
to proof of age discrimination.

  But it is eminently reasonable to doubt
that, as in this case, a worker hired at
an age well beyond that at which the
protections of the age discrimination law
click in and terminated within months,
that is, before he is appreciably older,
was a victim of age discrimination. Rand
v. CF Industries, Inc., 42 F.3d 1139,
1147 (7th Cir. 1994); LeBlanc v. Great
American Ins. Co., 6 F.3d 836, 847 (1st
Cir. 1993); Lowe v. J.B. Hunt Transport,
Inc., 963 F.2d 173, 174-75 (8th Cir.
1992). A company that didn’t want 54-
year-olds on its payroll would be
unlikely to hire one rather than to hire
one and promptly fire him, thus inviting
a lawsuit since terminated workers are
much more likely to sue than ones who
have merely not been hired, owing to the
much greater difficulty of proving
damages in the latter case. A worker who
is not hired will find it hard to prove
that he would have received a much higher
salary than in his present job--for why
would a new employer have paid him so
much more than his market rate? See Olin
v. Prudential Ins. Co., 798 F.2d 1, 4-5
(1st Cir. 1986), overruled on other
grounds, Gallagher v. Wilton Enterprises
Inc., 962 F.2d 120 (1st Cir. 1992) (per
curiam).

  2. Some cases suggest that statistical
evidence is not admissible to show
discrimination unless it is significant
at the conventional 5 percent
significance level (that is, the
coefficient of the relevant correlation
is at least two standard deviations away
from zero), e.g., Anderson v. Douglas &
Lomason Co., Inc., 26 F.3d 1277, 1291 n.
26 (5th Cir. 1994); Ottaviani v. State
University of New York, 875 F.2d 365,
371-72 (2d Cir. 1989); Segar v. Smith,
738 F.2d 1249, 1282-83 (D.C. Cir. 1984);
cf. Bennett v. Total Minatome Corp., 138
F.3d 1053, 1062 (5th Cir. 1998)
(significance level not specified)--in
other words, unless there is no more than
a 5 percent probability that we would
observe a statistical correlation between
the dependent variable (such as whether
terminated) and the independent variable
having legal significance (such as age)
even if the variables were uncorrelated
in the population from which the sample
was drawn. Other cases--including our
own--reject the suggestion. Bell v. EPA,
232 F.3d 546, 554 (7th Cir. 2000);
MacDissi v. Valmont Industries Inc., 856
F.2d 1054, 1058 n. 3 (8th Cir. 1988);
Heller v. Shaw Industries Inc., 167 F.3d
146, 158 (3d Cir. 1999); Waisome v. Port
Authority of New York & New Jersey, 948
F.2d 1370, 1376 (2d Cir. 1991). The 5
percent test is arbitrary; it is
influenced by the fact that scholarly
publishers have limited space and don’t
want to clog up their journals and books
with statistical findings that have a
substantial probability of being a
product of chance rather than of some
interesting underlying relation between
the variables of concern. Litigation
generally is not fussy about evidence;
much eyewitness and other nonquantitative
evidence is subject to significant
possibility of error, yet no effort is
made to exclude it if it doesn’t satisfy
some counterpart to the 5 percent
significance test. A lower significance
level may show that the correlation is
spurious, but may also be a result of
"noise" in the data or collinearity
(correlation between independent
variables, such as sex and weight), and
such evidence, when corroborated by other
evidence, need not be deemed worthless.
Conversely, a high significance level may
be a misleading artifact of the study’s
design; and there is always the risk that
the party’s statistical witness ran 20
regressions, one and only one of which
supported the party’s position and that
was the only one presented, though, in
the circumstances, it was a chance result
with no actual evidentiary significance.
(Careful pretrial discovery by the other
party should unmask this trick.)

  But the question whether a study is
responsible and therefore admissible
under the Daubert standard is different
from the weight to be accorded to the
significance of a particular correlation
found by the study. It is for the judge
to say, on the basis of the evidence of
a trained statistician, whether a
particular significance level, in the
context of a particular study in a
particular case, is too low to make the
study worth the consideration of judge or
jury. Cf. Adams v. Ameritech Services
Inc., 231 F.3d 414, 425 (7th Cir. 2000);
Porter v. Whitehall Laboratories Inc., 9
F.3d 607, 611 (7th Cir. 1993).

  3. Last we consider whether statistical
evidence alone, supposing it now to be
free from any doubts based on
significance levels, can ever establish a
prima facie case of intentional
discrimination (disparate treatment).
Some cases say yes, Walther v. Lone Star
Gas Co., 977 F.2d 161 (5th Cir. 1992)
(per curiam); MacDissi v. Valmont
Industries Inc., supra, 856 F.2d at 1058;
Chrisner v. Complete Auto Transit, Inc.,
645 F.2d 1251, 1259 n. 7 (6th Cir. 1981),
Davis v. Califano, 613 F.2d 957, 962
(D.C. Cir. 1980); Reed v. Lockheed
Aircraft Corp., 613 F.2d 757, 762 (9th
Cir. 1980); some no, Kidd v. Illinois
State Police, 167 F.3d 1084, 1101 n. 16
(7th Cir. 1999); Smith v. Horner, 839
F.2d 1530, 1536 n. 8 (11th Cir. 1988);
Carmichael v. Birmingham Saw Works, 738
F.2d 1126, 1131 (11th Cir. 1984)--though
it is important to note that our own
statements of this position, in Kidd and
the cases cited there, are brief dicta
probably best understood as comments on
the weakness of the particular evidence
presented in those cases rather than as
considered attempts to decide whether
statistical evidence might ever suffice
in an extreme, an unusual case. Although
it is unlikely that a pure correlation,
say between age and terminations, would
be enough to establish a prima facie case
of intentional discrimination, it would
be precipitate to hold that it could
never do so. If 100 employees in a
department of 1,000 employees were riffed
and every one of the 100 was 40 years old
or older and every one of the 900
retained was under 40, that would, we
should think, be enough evidence of age
discrimination (the probability of its
occurring by chance being inconceivably
minute) to place on the employer a burden
of explaining, which is all that making
out a prima facie case means. But that
cannot help the plaintiff in this case,
the facts of which are wildly different.

Affirmed.
