In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1003

William Radue,

Plaintiff-Appellant,

v.

Kimberly-Clark Corporation,

Defendant-Appellee.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98 C 879--Barbara B. Crabb, Judge.


Argued June 1, 2000--Decided July 10, 2000



  Before Bauer, Easterbrook, and Manion, Circuit Judges.

  Manion, Circuit Judge. When Kimberly-Clark
informed William Radue that he would be laid off
from his mechanical engineer position as part of
a reduction in force, it also mentioned that he
could seek other positions with the company.
Radue never secured another job, so he sued under
the ADEA, maintaining that younger employees were
given positions for which he was qualified.
Because Radue failed to show discrimination under
the direct method, and was unable to establish a
prima facie case of age discrimination, the
district court granted summary judgment for
Kimberly-Clark. We affirm.

I.

  William Radue is a mechanical engineer who
worked for Kimberly-Clark between June 30, 1975
and April 1, 1996. Since 1995, Radue was a senior
project engineer assigned to a paper machine
project at the Whiting Mill in Whiting,
Wisconsin. When the project was nearing
completion, Kimberly-Clark informed Radue that it
had no further projects requiring his mechanical
engineering skills and that his position would
therefore be eliminated. Radue was fifty-three
years old at this time, and was only two years
away from eligibility for severance benefits. He
asked whether another slot might be found for him
so that he could complete the requisite two
years, and he expressed a willingness to take any
available position. Kimberly-Clark officials
informed him that he should seek other jobs in
the company by contacting people he knew and by
using the resources of the company’s Engineering
Career Development Team. The ECDT sought to match
engineer employees with suitable positions
throughout the company. It did this by
maintaining a database of all engineering
personnel and vacant engineering positions. Each
sector of the company had a representative on the
ECDT, and Radue’s representative was Jim Parent.
Although Parent located a position for an
electrical engineer who was subject to the RIF,
he was unsuccessful in finding one for Radue.
Other engineers transferred to positions
throughout the company, but Radue never obtained
another job with Kimberly-Clark, either through
his informal inquiries or through the ECDT.

  Claiming that he was the victim of age
discrimination, Radue sued the company under the
Age Discrimination in Employment Act, which
prohibits intentional discrimination against
persons over the age of forty. See 29 U.S.C. sec.
623(a)(1). Radue did not allege that the
reduction in force was motivated by his age.
Rather, his complaint centered on the company’s
failure to assist him to the same extent it
assisted other employees in finding other
vacancies, and the company’s failure to transfer
him to other positions. The district court
granted summary judgment for Kimberly-Clark
because Radue could not show discrimination under
either the direct or indirect method. He
presented no direct evidence of discrimination.
With respect to the indirect method, while he
presented evidence that one substantially younger
employee might have been treated better than he
was, and that some similarly situated employees
might have received preferential treatment, he
failed to show that any employee who was both
similarly situated and substantially younger
received superior treatment with respect to an
intra-company transfer. Radue appeals from the
summary judgment, arguing that he has created a
genuine issue for trial under either the direct
or indirect method.
II.

  Radue concedes, as he must, that the ADEA does
not require his employer to terminate younger
employees in order to open positions for older
workers. See Walther v. Lone Star Gas Co., 952
F.2d 119, 123 (5th Cir. 1992). Radue also
recognizes that when an employer reduces its
workforce it has no duty to transfer senior
employees to available positions. Taylor v.
Canteen Corp., 69 F.3d 773, 780 (7th Cir. 1995).
But when internal job placement services are
benefits of employment which are provided to
younger employees, an employer must provide
roughly the same benefits to ADEA-protected
employees, and when an employer responds to a RIF
by transferring employees to available positions,
it may not refuse to transfer older employees
based on their age. Kusak v. Ameritech Info.
Sys., Inc., 80 F.3d 199, 201 (7th Cir. 1996);
Taylor, 69 F.3d at 780. We assume, because the
parties do, that use of the ECDT system was a
benefit that Kimberly-Clark provided to all
employees, and that Radue was therefore entitled
to receive equal treatment in the internal job
search. There’s no indication that in
communicating to supervisors the names of
engineers available for transfer Kimberly-Clark
did not treat Radue the same as it did younger
employees, which precludes Radue’s "job hunting"
claim. Furthermore, a claim that an employer
refused to provide equal assistance in finding a
transfer for a protected employee requires a
showing that there was an available position for
which the plaintiff was qualified. See Sauzek v.
Exxon Coal USA, Inc., 202 F.3d 913, 919 (7th Cir.
2000) (employee must have been qualified for and
applied for specific jobs that were available
during the RIF); Taylor, 69 F.3d at 779, 780. As
will be seen in addressing Radue’s failure to
transfer claim--which has the same requirement--
he made no such showing. So we confine our
analysis to Kimberly-Clark’s failure to transfer
Radue. To withstand summary judgment on this
claim, Radue must present sufficient evidence
from which a jury could find that his employer
acted with a discriminatory intent in failing to
consider him for positions commensurate with his
skills. Blackwell v. Cole Taylor Bank, 152 F.3d
666, 672 (7th Cir. 1998). He may do this using
either the direct or the indirect method of
proof. Sheehan v. Daily Racing Form, Inc., 104
F.3d 940, 940 (7th Cir. 1997).

A.   The Direct Method

  Radue first argues that summary judgment was
improper because he has sufficient direct
evidence of discriminatory intent to create a
genuine issue for trial.

  A plaintiff can avert summary judgment for the
defendant in an employment discrimination case by
presenting enough evidence, whether direct or
circumstantial, of discriminatory motivation to
create a genuine issue for trial. Sheehan, 104
F.3d at 940. In pleading discrimination cases,
litigants, usually as an alternative argument,
will often contend that they have unearthed
direct evidence of discriminatory intent, but
such direct evidence--"eyewitness testimony as to
the employer’s mental processes"--is rarely
found. Reeves v. Sanderson Plumbing Products,
Inc., 120 S. Ct. 2097 (2000). Direct evidence
essentially requires an admission by the
decision-maker that his actions were based on the
prohibited animus. Troupe v. May Dep’t Stores,
Co., 20 F.3d 734, 736 (7th Cir. 1994); see Coco
v. Elmwood Care, Inc., 128 F.3d 1177, 1178 (7th
Cir. 1997); Sheehan, 104 F.3d at 941. Radue has
nothing that looks even slightly like an
admission, which is not surprising, since most
employers are careful not to openly discriminate
and certainly not to publicly admit it. Therefore
most plaintiffs, including Radue, must rely on
circumstantial evidence of discriminatory intent.

  Radue’s circumstantial case under the direct
method is primarily composed of statistics which
show that older employees were treated less
favorably than younger employees in various RIFs
conducted by Kimberly-Clark. For example, Radue’s
numbers show that in November 1995, when
Kimberly-Clark was performing a RIF in another
sector of the company, the mean age of the 140
engineers and consultants selected to be retained
was 37.51, while the mean age of the 16 engineers
receiving pink slips was 50.75. This, he
concludes without any further analysis,
demonstrates that his own plight was caused by
invidious discrimination. But these statistics
hardly compel this conclusion. For starters, they
are based on a completely different part of the
company (the family care sector) than that in
which Radue worked (the Neenah paper sector). The
numbers also include more than just engineers.
And Radue’s contention with respect to these
statistics--that the November 1995 RIF was
engendered by age bias--differs from the argument
made in his own case: his RIF was not age-based,
but transfers awarded afterward were. A more
basic problem is that statistics can only show a
relationship between an employer’s decisions and
the affected employees’ traits; they do not show
causation. Munoz v. Orr, 200 F.3d 291, 301 (5th
Cir. 2000) (citing Tagatz v. Marquette Univ., 861
F.2d 1040, 1044 (7th Cir. 1988)). Because the
occurrence of adverse employment actions may
correlate to older employees for reasons other
than intentional discrimination, causation is
suggested only when the other variables are shown
to be insignificant. Furr v. Seagate Tech., Inc.,
82 F.3d 980, 987 (10th Cir. 1996). "Statistical
evidence which fails to properly take into
account nondiscriminatory explanations does not
permit an inference" of discrimination. Id. A
plaintiff must show "disparate treatment between
comparable individuals." Id.

  Tagatz succinctly illustrates this principle. In
that case, the plaintiff showed that younger
university professors received larger annual
raises than older professors. While
discrimination was one plausible explanation for
the disparity, the court acknowledged that an
equally plausible, nondiscriminatory explanation
was suggested by the fact that "academics’
salaries tend to rise rapidly in the early stages
of their career and to reach a plateau when the
academic becomes a full professor . . . ." 861
F.2d at 1045. Because the plaintiff failed to
explain why his statistical evidence did not
equally support this alternative theory, it was
not particularly probative of discriminatory
intent. Similarly, in Barnes v. Southwest Forest
Industries, Incorporated, the employer discharged
fourteen security guards in a RIF, thirteen of
whom were over the age of forty, and hired eleven
younger employees just before the RIF, without
giving the older employees a chance to compete
for the jobs. 814 F.2d 607, 608, 610 (11th Cir.
1987). The Eleventh Circuit held that these
statistics failed to support a prima facie case
of "failure to retain or rehire" discrimination
where the plaintiff offered no other
circumstantial evidence suggesting a
discriminatory motive. As in the present case,
there were alternative explanations for the
numbers, which the plaintiff failed to take into
account. "Standing virtually alone, as they are
in this case, statistics cannot establish a case
of individual disparate treatment." Gilty v.
Village of Oak Park, 919 F.2d 1247, 1253 n.8 (7th
Cir. 1990). Yet Radue has failed to suggest why
obvious, alternative explanations were likely not
the actual reasons for the layoffs. See Furr, 82
F.3d at 987 (the plaintiff’s statistical evidence
is flawed when it fails to take into account
nondiscriminatory reasons for disparities).
Because Radue has neglected his burden of showing
that the statistical evidence strongly suggests
that his inability to find another position was a
result of intentional discrimination, he has not
established a case under the direct method.

B.   The Indirect Method

  Radue also contends that he can show intentional
discrimination using the McDonnell Douglas
burden-shifting method.

  Plaintiffs utilizing the McDonnell Douglas
burden-shifting formula for showing
discriminatory intent must first establish a
prima facie case of discrimination. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
Sheehan, 104 F.3d at 940. To do so in an ADEA-
RIF-failure to transfer case, a plaintiff must
present evidence that: (1) he is a member of a
protected class; (2) he reasonably performed his
job to his employer’s expectations; (3) he was
subject to an adverse employment action; and (4)
other similarly situated employees who were
substantially younger than him were treated more
favorably. Michas v. Health Cost Controls of
Ill., Inc., 209 F.3d 687, 693 (7th Cir. 2000);
Taylor, 69 F.3d at 779. Kimberly-Clark does not
dispute the first three elements, so the only
question is whether Radue established the last
element.


  1.   Similarly situated.

  In determining whether two employees are
similarly situated a court must look at all
relevant factors, the number of which depends on
the context of the case. Spath v. Hayes Wheels
Int’l-In., Inc., 211 F.3d 392, 397 (7th Cir.
2000). For example, in disciplinary cases--in
which a plaintiff claims that he was disciplined
by his employer more harshly than a similarly
situated employee based on some prohibited
reason--a plaintiff must show that he is
similarly situated with respect to performance,
qualifications, and conduct. Byrd v. Ronayne, 61
F.3d 1026, 1032 (1st Cir. 1995). This normally
entails a showing that the two employees dealt
with the same supervisor, were subject to the
same standards, and had engaged in similar
conduct without such differentiating or
mitigating circumstances as would distinguish
their conduct or the employer’s treatment of
them. Mitchell v. Toledo Hosp., 964 F.2d 577, 583
(6th Cir. 1992). In a failure to transfer case
some of these factors--like the severity of the
infractions--are not relevant, although the same
general comparisons must be made. As to the
relevant factors, an employee need not show
complete identity in comparing himself to the
better treated employee, but he must show
substantial similarity. Ercegovich v. Goodyear
Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
1998). Without making an exhaustive list, we note
that in previous RIF cases plaintiffs were
required to show at a minimum that the retained
or transferred younger employees possessed
analogous attributes, experience, education, and
qualifications relevant to the positions sought,
and that the younger employees obtained the
desired positions around the same time as the
RIF. Biolchini v. General Elec. Co., 167 F.3d
1151, 1154 (7th Cir. 1999); Fisher v. Wayne
Dalton Corp., 139 F.3d 1137, 1141 (7th Cir.
1998); Taylor, 69 F.3d at 782; Holmberg v. Baxter
Healthcare Corp., 901 F.2d 1387, 1392 (7th Cir.
1990).

  Radue bases his prima facie case primarily on
comparing himself to three employees: Ray
Nankervis, Mark Proctor, and Renatta Williams.
First, as to Proctor, Radue contends that
Kimberly-Clark provided him with an electrical
engineering position. But Radue can’t show a
meaningful similarity to Proctor because Proctor
is an electrical engineer, while Radue is not.
The fact that Proctor was qualified for the
position he obtained, while Radue isn’t, means
that there is insufficient similarity to infer
discrimination. See Sauzek, 202 F.3d at 919. As
far as Nankervis, Radue doesn’t indicate that he
was subject to a RIF, which means that Nankervis
and Radue were not in materially parallel
positions. The same holds true for Williams, who
accepted a purchasing agent position, but
apparently not as a result of a RIF, and
therefore is not a candidate for comparison.
Spath, 211 F.3d at 397 (plaintiff must show that
the ’comparables’ are similarly situated in all
relevant respects).
  A demonstration of substantial similarity would
also require a showing that a common supervisor
offered one of these other employees a position
for which Radue was qualified, and that this same
supervisor also knew about Radue’s availability
but refused to offer the job to him. Radue hasn’t
shown a common supervisor, and in fact doesn’t
even mention who offered Williams and Nankervis
their positions. This omission alone probably
precludes a showing of similarity because when
"’different decision-makers are involved, two
decisions are rarely similarly situated in all
relevant respects.’" Stanback v. Best Diversified
Products, Inc., 180 F.3d 903, 910 (8th Cir. 1999)
(quoting Harvey v. Anheuser-Busch, Inc., 38 F.3d
968, 972 (8th Cir. 1994)); see Hollins v.
Atlantic Co., Inc., 188 F.3d 652, 659 (6th Cir.
1999). Different employment decisions, concerning
different employees, made by different
supervisors, are seldom sufficiently comparable
to establish a prima facie case of discrimination
for the simple reason that different supervisors
may exercise their discretion differently. Cf.
Weisbrot v. Medical College of Wisconsin, 79 F.3d
677, 683 (7th Cir. 1996); Timms v. Frank, 953
F.2d 281, 287 (7th Cir. 1992). These distinctions
sufficiently account for any disparity in
treatment, thereby preventing an inference of
discrimination.

  Even if Radue demonstrated some likeness to
Nankervis, Proctor, and Williams in these
respects, he was substantially dissimilar to them
in two material ways: he had previous job
performance problems and he communicated to
superiors that he hoped he could bide his time
with the company for two more years in order to
qualify for a good severance package. With
respect to his performance, Radue was perceived
as having a drinking problem, had episodes of
non-attendance, and was thought to procrastinate
on projects. Nankervis, Williams, and Proctor
were not previously cited for substantial
performance problems and never manifested an
intent to make a quick departure, which makes
them materially different from Radue. See Smith
v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st
Cir. 1994) (substantial similarity requires a
showing that the ostensibly similar employees
conducted themselves in a corresponding fashion).
Because these distinctions were substantial
enough to account for the different treatment
Radue claims he received, Radue has failed to
show that he was sufficiently similar to either
Proctor, Nankervis, or Williams to establish a
prima facie case.

  Radue also points to about thirteen mechanical
engineers and six process engineers who were
hired, transferred, or promoted to other
positions around the time of the RIF. But that’s
about all he does with this information, and so
his halfhearted attempt to show similarity
suffers from the problems we just discussed. The
defect underlying Radue’s approach stems from the
frequency of transfers, promotions, and hirings
at Kimberly-Clark, which means that these events
are not in themselves indicative of
discrimination. As we have already emphasized, a
showing of discrimination requires more--much
more than simply identifying employees who
obtained jobs around the same time that the
plaintiff was looking for a position. A valid
comparison would have entailed showing that the
these employees also encountered a RIF, that they
obtained positions for which Radue was qualified,
and that the supervisors in charge also knew that
Radue was looking for such positions. Without
this, there’s no basis for inferring that the
other employees were similarly situated. The
similarly situated requirement is very important,
for without it a plaintiff would only have to
point to one younger employee who was treated
better than he. Wallace v. SMC Pneumatics, Inc.,
103 F.3d 1394, 1398 (7th Cir. 1997). Such a
minimal showing would be meaningless, especially
with respect to large corporations like Kimberly-
Clark. The record in this case does not indicate
that Radue and these nineteen employees shared
common features essential to a meaningful
comparison, thus they cannot be used to establish
the fourth element of a prima facie case of
discrimination.


  2.   Substantially younger.

  Finally, we also note that Radue was required to
show that any similarly situated employees were
substantially younger, which Radue cannot do as
to Nankervis and Proctor. Nankervis was forty-six
years old at the time of the RIF, which is
problematic for Radue because to satisfy the
"substantially younger" requirement, the relevant
individual must be at least ten years younger
than the plaintiff. Hartley v. Wisconsin Bell,
Inc., 124 F.3d 887, 893 (7th Cir. 1997). There
being only seven years difference between the
two, Nankervis is not substantially younger.
Proctor won’t work either, as he is 9.5 years
younger than Radue. But 9.5 is pretty close to
10, and where a plaintiff just misses the 10-year
mark, he can still present a triable claim if he
directs the court to evidence that his employer
considered age to be a significant factor.
Fisher, 139 F.3d at 1141. But all Radue has are
his statistics, the shortcomings of which we
discussed above. Therefore, Radue could not use
Proctor to make out a prima facie case either.
Although Renatta Williams and the nineteen
engineers Radue mentioned are substantially
younger than Radue, as we discussed above, Radue
didn’t show that they were similarly situated.

III.

  Radue presented no direct evidence of
discrimination and his statistical evidence
failed to create a legitimate jury question. As
to the indirect method, Radue failed to establish
a prima facie case because he could not show that
even a single substantially younger, similarly
situated employee was treated more favorably.
Accordingly, the district court properly granted
summary judgment for Kimberly-Clark, and its
decision is in all respects

AFFIRMED.
