Terry E. Grimm , Roger H. Curry , Edgar F. Greathouse , Et Al . v. Alro Steel Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2879
T ERRY E. G RIMM , R OGER H. C URRY ,
E DGAR F. G REATHOUSE , ET AL .,
Plaintiffs-Appellants,
v.
A LRO S TEEL C ORPORATION ,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 02 C 585—Robert L. Miller, Jr., Chief Judge.
____________
A RGUED M AY 2, 2005—D ECIDED J UNE 7, 2005
____________
Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.
E VANS , Circuit Judge. Alro Steel Corporation distributes
steel, specialty metals, industrial supplies, and plastics.
This case arises out of the company’s decision to close its
plant in South Bend, Indiana, in 2001, terminating the jobs
of 26 warehousemen who worked there. Twelve of those

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2 No. 04-2879
1 Thirteen workers initially filed suit, but one dropped his case.
The remaining plaintiffs are: Terry Grimm, Roger Curry, Edgar
Greathouse, William Bauer, Randy Clemens, William Howell,
Charles Moore, David Pietrzak, Terry Stephenson, James Teske,
Kenneth Wharton, and Andrew Zurawski.
workers claim the decision to let them go was motivated, at
least in part, by their age. 1
The closing of the South Bend plant came about as part
of a larger company restructuring. In 1999, Alro bought
land to build a new facility in Niles, Michigan. Although it
originally intended the Niles plant to provide additional
capacity for the South Bend plant and a facility in Benton
Harbor, Michigan, declining sales led Alro to close both of
the existing plants. All 16 of the Benton Harbor warehouse
employees, who were members of Teamsters Union Local 7,
were given the opportunity to transfer to the Niles plant,
where they would continue to be represented by Teamsters
Local 7.
In early July 2001, Alro notified the plaintiffs, who were
members of Teamsters Union Local 364, and other South
Bend warehouse workers of its intent to close that plant
and terminate their employment, which it did on July 27.
The situation moved the plaintiffs to file age discrimination
charges with the Equal Employment Opportunity Commis-
sion. Eventually, they filed this suit, claiming that Alro
violated the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621 et seq. The district court granted
summary judgment in Alro’s favor, and the plaintiffs
appeal.
We review the district court’s grant of summary judgment
de novo, viewing all facts and drawing all reasonable infer-
ences in the plaintiffs’ favor. Bellaver v. Quanex Corp., 200
F.3d 485, 491-92 (7th Cir. 2000). Summary judgment is
appropriate if there is no genuine issue as to any material

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No. 04-2879 3
fact and the moving party is entitled to judgment as a mat-
ter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
A plaintiff can prove discrimination under the ADEA by
presenting direct or circumstantial evidence that an employer
took an adverse job action against him because of his age.
An employee can also use the indirect burden-shifting
approach set out in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-03 (1973), proving discrimination “by con-
structing a ‘convincing mosaic’ of circumstantial evidence
that ‘allows a jury to infer intentional discrimination by the
decisionmaker.’ ” Cerutti v. BASF Corp., 349 F.3d 1055,
1060-61 (7th Cir. 2003) (quoting Troupe v. May Dep’t Stores
Co., 20 F.3d 734, 736 (7th Cir. 1994)).
The plaintiffs initially claimed to have sufficient evidence to
support their claims under both methods. They first pointed
to an admission by Dave Zontek, vice-president of human
resources at Alro, that he asked about the seniority of three
South Bend workers being considered for transfers to the
Niles plant. The district court found that this inquiry was
not sufficient evidence of age discrimination.
On appeal, the plaintiffs focus almost solely on the
McDonnell Douglas analysis, which, as we have said many
times, requires employees claiming a violation of the ADEA to
show that: (1) they are members of a protected class; (2)
they were meeting the employer’s legitimate expectations;
(3) they were discharged and not rehired or promoted as a
result of the employer’s reorganization; and (4) the em-
ployer treated younger, similarly situated employees more
favorably. Cerutti, 349 F.3d at 1061. If the employee can
meet that burden and establish a prima facie case, the
burden shifts to the employer to produce a legitimate,
nondiscriminatory reason for its adverse employment
decision. That shifts the burden back to the employee to

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4 No. 04-2879
present evidence sufficient to enable a fact finder to find
that the employer’s explanation is pretextual. Id.
While acknowledging that the plaintiffs here are members
of a protected class and were discharged and not rehired,
the district court found that the plaintiffs failed to establish
a prima facie case because they did not show that they were
meeting Alro’s legitimate expectations or that Alro treated
younger, similarly situated employees more favorably.
On the legitimate expectations issue, the district court
highlighted the statistical evidence showing that the South
Bend plant was one of Alro’s least productive operations.
The plaintiffs argue that they had few recorded disciplinary
problems and that summaries of a plant’s performance do
not necessarily speak to the performance of the individual
plaintiffs. They also cite the testimony of Brian Hoggatt, a
shift supervisor at the plant, who said that all of the
plaintiffs were competent.
We agree with the district court’s conclusion that the
plaintiffs’ evidence was weak. At this stage, however, the
evidence does not have to be very strong to be sufficient,
and Alro’s contention that the plaintiffs were not meeting
legitimate expectations is undermined by the fact that the
company took little action to address the plant’s lack of
productivity for several years before closing it.
Ultimately, though, we need not determine whether the
plaintiffs adequately demonstrated that they were meeting
Alro’s legitimate expectations because the district court cor-
rectly concluded that they did not show that Alro treated
younger, similarly situated employees more favorably. The
district court acknowledged that the duties performed by
the new employees at the Niles plant were almost identical
to those performed by the plaintiffs, as we have required.
See Michas v. Health Cost Controls of Ill., Inc., 209 F.3d
687, 693 (7th Cir. 2000). But the district court also noted
that, while the plaintiffs could show that, as a group, the

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No. 04-2879 5
warehousemen hired to replace them were younger, none of
the individual plaintiffs provided sufficient evidence to
show that he personally was replaced by a substantially
younger worker.
The plaintiffs argue that forcing each worker to figure out
who replaced him is not always possible and, as a result,
such a standard would allow employers to get around
discrimination laws by firing and replacing employees in
groups instead of one at a time. While the plaintiffs’ argu-
ment might be persuasive in a different situation, it is not
altogether relevant here. That’s because, as the district
court noted, the relevant similarly situated workers are not
the workers’ replacements but the five warehousemen at
the South Bend plant who were under 40. None of those five
(four of whom were under age 25) were invited to remain
with Alro after the closing of the South Bend plant. In other
words, the young workers were treated exactly like the
older workers—all were let go.
Although McDonnell-Douglas provides an appropriate
framework, the ultimate question in an ADEA case like this
is whether Alro would have treated the plaintiffs any
differently if they were younger. See Cerutti, 349 F.3d at
1061. On that larger question, the evidence overwhelmingly
suggests that it would not have. Once Alro decided on its
reorganization plan, it had to decide where to get the
warehouse workers for the Niles plant. Alro decided to offer
transfers to the Benton Harbor warehouse workers, nine of
whom were over the age of 40, and to hire new workers,
seven of whom were older than 40. And there is no evidence
to contradict Alro’s claim that its decision to transfer and
hire those workers, and not the South Bend workers, was
made in large part because of Alro’s relationship with the
unions representing the workers at the Benton Harbor and

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6 No. 04-2879
2 Although the decisions made in the course of the restructuring
arguably had a disproportionate effect on the older warehouse
workers, the plaintiffs admitted at oral argument that they had
little evidence to support a disparate impact claim.
USCA-02-C-0072—6-7-05
South Bend plants. 2 Whatever the propriety of basing its
decisions on the workers’ representation, no reasonable jury
could find that age of the plaintiffs was a motiving factor in
Alro’s choices. Accordingly, the judgment of the district
court is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

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