Kenneth JANIUK, Plaintiff-Appellant, v. TCG/TRUMP COMPANY, Formerly Known as the Trump Company, Defendant-Appellee

BAUER, Circuit Judge,

dissenting.

The majority opinion sets forth the elements of a prima facie age discrimination case and the shifting burdens of proof and production necessary for Janiuk’s claim to survive summary judgment. The majority limited the inquiry to the accuracy of the Kalk chart and flatly rejected Trump’s assertion that Janiuk and Kalk were not similarly situated for purposes of the fourth element of the prima facie case, ultimately finding that “the record reveals evidence from which a reasonable jury could conclude that the Kalk chart was accurate” thereby precluding summary judgment. I believe the majority’s focus to be misplaced, its scope too narrow, and I respectfully dissent.

While it is undisputed that Janiuk satisfies the first three elements of the prima facie case for age discrimination, this court has recognized the need for flexibility in establishing such prima facie case. “[I]t is a flexible standard that ‘is not intended to be rigidly applied.’” Collier v. Budd Co., 66 F.3d 886, 890 (7th Cir.1995) (internal citation omitted). The prima facie case, particularly the fourth prong, must be adapted to the differing factual circumstances that give rise to discrimination claims. In reduetion-in-force cases, this court has held that the fourth element of a prima facie ease for age discrimination is not that the employee was replaced by a younger employee but that similarly situated younger employees were *510treated more favorably. Id. at 890-91; Roper v. Peabody Coal Co., 47 F.3d 925, 926 (7th Cir.1995).

Trump disputes the accuracy of the Kalk chart; Janiuk relies on it to argue that Steve Kalk in fact replaced Janiuk as the sales manager of the independent outlet division. The majority finds that Janiuk presented sufficient evidence to demonstrate that there is a triable issue of fact as to accuracy of the Kalk chart and whether Kalk assumed the position of division sales manager after Jan-iuk’s termination, thereby creating an inference that Trump’s actions were motivated by a discriminatory intent. The mere existence of a factual dispute between the parties does not defeat an otherwise properly supported motion for summary judgment. McGinn v. Burlington Northern R. Co., 102 F.3d 295, 298 (7th Cir.1996). An essential consideration in evaluating the fourth element is not that younger employees were treated more favorably but that similarly situated younger employees received favorable treatment. The fact that an employer retains younger employees is not enough; those younger employees must be similarly situated with the plaintiff. Gadsby v. Norwalk Furniture Corp., 71 F.3d 1324, 1333 (7th Cir.1995).

Janiuk’s reliance on the Kalk chart is misplaced; as a threshold matter, the record demonstrates that Kalk was not similarly situated with Janiuk. Instead, the record shows, and Janiuk admits, that Jeanne Bo-dart was his counterpart as the sales manager for Trump’s chain outlet division and that Steve Kalk was simply an area manger under Janiuk’s supervision. (R. 127). After Janiuk’s termination and the company’s reorganization, Trump assigned and delegated Janiuk’s responsibilities among various employees, including persons both older and younger than Janiuk. In fact, Kalk testified in his deposition that to his knowledge no one ever replaced Janiuk. (R. 162). Although Kalk admitted that he assumed some of Janiuk’s responsibilities, he also acknowledged that Trump assigned some of Janiuk’s previous responsibilities to Bob Prater and Jeanne Bodart. (R. 139, 140). In addition to Kalk, Prater and Bruce Milne also provided deposition testimony that Kalk did not replace Janiuk. (R. 186, 188, 198). Notwithstanding the Kalk chart, the record reveals that Janiuk did not receive less favorable treatment than younger employees; rather, employees not in the protected age group were terminated along with Janiuk as the result of Trump’s reduction in force in addition to the fact that both younger and older employees assumed some of Janiuk’s previous responsibilities.

I hesitate to join an opinion that would force companies to pause before eliminating a particular position in its corporate structure based on legitimate business reasons for the sole reason that the employee in the eliminated position is protected by the ADEA; employers should not be forced to make decisions that are not the ideal management choices (assuming, of course, that they are legitimate, nondiscriminatory decisions) based solely on a desire to avoid discrimination claims. Furthermore, I believe that an employer should not be subject to liability for age discrimination claims because, after a legitimate reduction in force, it assigns the duties and responsibilities of a discharged employee to persons both older and younger than that discharged employee. In my opinion, Janiuk failed to establish a prima facie case for age discrimination, and summary judgment was appropriate.

Even more, assuming arguendo that Jan-iuk established a prima facie case of age discrimination, he nonetheless failed to demonstrate that Trump’s proffered reasons for his discharge were pretextual. The production of a prima facie case simply creates a “legally mandatory, rebuttable presumption” of discrimination. O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). The employer must then come forward with a legitimate, nondiscriminatory reason for the adverse employment action; an employer needs only one legitimate reason to succeed on summary judgment. Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir.1995). Once the employer provides its reasons, the burden ultimately shifts to the plaintiff who must demonstrate that the proffered reasons are a pretext for discrimination. We need *511not look far to see that Janiuk has not met this burden.

Trump explained that its ultimate decision to eliminate Janiuk’s position, along with the four other positions, was based on the loss of one of its largest accounts (in addition to two smaller accounts) and an overall loss of revenue. The record indicates that the shareholders’ decision was to reduce operating costs by eliminating positions that would be least disruptive to the corporate structure and its daily operations, which had nothing to do with age or the status of particular employees in those positions. (R. 113, 167). Business decisions, such as a reduction in force to offset a loss of revenue, are judgments within the discretion of management best left to the employer, without a judicial disruption of the corporate structure or a second-guessing of an employer’s reasoned and informed decisions.

This court has established that it “ ‘does not sit as a super-personnel department that reexamines an entity’s business decisions.’” Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 400 (7th Cir.1997) (quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.1986)). An employer retains the authority and discretion to determine how and where to achieve necessary cost savings, and Trump’s shareholders determined that a reduction in its operating expenses, which included the elimination of certain positions, was the solution. Such decisions are legitimate business and economic reasons for the adverse employment action, which satisfied Trump’s burden of production. Janiuk now must produce enough evidence from which a reasonable factfinder could infer that Trump’s proffered reasons for his termination are false and not worthy of credence. Kralman v. Illinois Dept. of Veterans’ Affairs, 23 F.3d 150, 156 (7th Cir.1994). The key inquiry here is whether Janiuk produced sufficient evidence from which a rational jury could infer that Trump was untruthful about its financial instability and its need to reduce operating expenses to accommodate the loss in revenue. Where an employer advances specific reasons for an employment decision, rebuttal evidence should focus on those reasons. Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1133 (7th Cir.1994). Janiuk fails to present any evidence calling into doubt either Trump’s financial concerns or its loss in revenue; he merely repeats that Trump’s proffered reasons for his discharge are pretextual because after the reduction in force, Kalk assumed Janiuk’s position as the independent division sales manager, as illustrated by the Kalk chart. That is not enough.

Trump’s business decision, whether good or bad, was premised on an evaluation of its financial instability and its ultimate conclusion that the elimination of the sales manager position in the chain outlet division, in addition to four other positions, would be the least disruptive to its routine operations. We do not evaluate the wisdom of the employer’s decision, but rather the genuineness of its motives. Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 848 (7th Cir.1992). Our task is to determine “ “whether the employer gave an honest explanation of its behavior.’ ” Chiaramonte, 129 F.3d at 400 (quoting Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 560 (7th Cir.1987)). Even if Trump misjudged that the elimination of the division manager position would be one of the least disruptive changes, that miscalculation is insufficient to present a jury question as to pretext, particularly when there is no evidence that age was the discriminatory animus; summary judgment was appropriate.

In its reorganization, Trump retained employees in the protected age group and terminated employees who were younger than Janiuk. The record does not reveal any evidence from which a reasonable jury could infer that age, and not Trump’s financial instability, motivated its reduction in force; there is no indication that age played any role in its decision. Tramp gave equal consideration to all its employees. Janiuk cannot simply substitute his own judgment for that of Trump’s, and I believe that a reasonable jury could not conclude that Trump’s loss of revenue and its need to reduce operating expenses are not the actual reasons for its reduction in force.

For these reasons, I would affirm the district court’s grant of summary judgment.