Court Cases Court Cases
View Case Details
NWS, INC., d/b/a UNION LIQUOR COMPANY, Consolidated Distilled Products, Inc., an Illinois Corporation, and CONSOLIDATED DISTILLED PRODUCTS, INC., d/b/a Union Liquor Company, an Illinois Corporation, Defendants.
No. 92 C 8339
October 23, 1997, Docketed
For SYLVESTER INGRAM, JR, GERALD S RODWAY, JESSIE B BARON, MAURICE JUSTINE, ELIJAH WILLIAMS, WILLIE C WILLIAMS, EDWARD NEWSON, JAMES GOVAN, STEPHEN T HUDSON, JR, plaintiffs: Jane Farwell Anderson, Richard J. Prendergast, Ltd., Thomas Stephen Moore, Anderson & Moore, P.C., Chicago, IL.
For NWS INC, CONSOLIDATED DISTILLED PRODUCTS, INC., defendants: Derek Grady Barella, Winston & Strawn, Andrew D. James, Burke, Warren, MacKay & Serritella, P.C., Chicago, IL.
For NWS INC, defendant: Leann Pedersen Pope, Burke, Warren, MacKay & Serritella, P.C., Chicago, IL.
For NWS INC, CONSOLIDATED DISTILLED PRODUCTS, INC., defendants: Kim F Ebert, Locke, Reynolds, Boyd & Weisell, Indianapolis, IN.
For NWS INC, CONSOLIDATED DISTILLED PRODUCTS, INC., defendants: Sarah R Galvarro, Attorney at Law, Nashville, TN.
For CONSOLIDATED DISTILLED PRODUCTS, INC., defendant: Jeffry T. Mandell, Jeffry T. Mandell, Attorney At Law, Chicago, IL.
Blanche M. Manning, United States District Court.
The Hon. Justice Manning

Employment Act ("ADEA"), 29 U.S.C. SEC. 621 et. seq., and the Illinois Workers Compensation Act ("IWCA"). 820 ILCS 305/1 et seq. Plaintiffs are former employees of Consolidated who were discharged immediately prior to the effective date of NWS' acquisition of Consolidated's total assets. NWS then either refused to hire or hired and subsequently discharged each of the plaintiffs. Defendants each filed motions for summary judgment as to all of plaintiffs' claims. During the briefing over this motion, defendants filed a motion to strike certain of the plaintiffs' responses to their 12(M) statements. In a prior order, this court denied the motion for summary judgment. Defendants have since filed a motion for reconsideration of that ruling, and plaintiffs filed a motion to strike defendants' motion for reconsideration.

For the reasons set forth below, the court grants in part the defendants' motion for reconsideration and denies the plaintiffs' motion to strike the motion for reconsideration. The court also grants in part and denies in part the defendants' motion to strike plaintiffs' responses to its statements of uncontested fact. Finally, the court sui sponte alters its previous ruling denying defendants' motions for summary judgment, and instead grants in part and denies in part the motions.


  1. Motion to Strike.
Defendants first move pursuant to Local Rule 12 to strike a significant portion of plaintiffs' Local Rule 12(N) responses on a variety of grounds, and deem their own corresponding 12(M) statements of undisputed facts as admitted. From a review of the plaintiffs' 12(N) response, plaintiffs' effort at assisting the court in locating an evidentiary basis for their claims to identify genuine issues of fact can most generously be described as inadequate. Their responses often contain denials with little or no further explanation as to the basis of the denial. In addition, citations often vaguely refer to entire documents instead of pointing to specific portions of those documents. Consequently, they have left the defendants and court to search through large portions of the record in order to locate relevant evidence and discern how this evidence might create a genuine dispute. Obviously, this does not satisfy plaintiffs' obligations under Local Rule 12(N).

First, plaintiffs concede that thirty-nine of these responses of "no objection" constitute admissions of the defendants' corresponding 12(M) statements. *fn1 Therefore, the court deems these 12(M) statements admitted.

Second, defendants move to strike plaintiffs' denials of thirteen of their statements of fact because they are not supported by any citation to evidence. *fn2 In order to properly respond to a 12(M) statement of fact, the nonmovant must make proper reference to the record. Stewart v McGinnis, 5 F.3d 1031, 1034 (7th Cir. 1993). If the nonmovant fails to make such reference, the 12(M) statement is deemed admitted to the extent that it is supported by the movant's citation to the record. See id. Plaintiffs offer no response to this assertion. Therefore, these responses are stricken. To the extent that they are supported by the record, the court will deem these referenced 12(M) statements admitted.

Third, defendants move to strike responses to seventeen statements of fact because these responses only cite to other responses in their 12(N) statement. *fn3 Rule 12(N) requires plaintiffs to support their responses by "specific reference" to the record. The court agrees with defendants that plaintiffs' method requires the court to analogize the incorporated response to each question. Because the plaintiffs have provided a concrete response, the court will deny defendants' motion to strike these responses. However, the court will not strain to make any analogies between the cited responses and the defendants' 12(M) statement at issue. If the relationship between the cited response and the 12(M) statement is unclear, the court will consider that response insufficient.

Fourth, defendants move to strike responses to thirty-four statements of fact because they cite only to the pleadings. *fn4 Plaintiffs contend that their responses are based upon citations to the record, because the cited portions of the pleadings, in turn, cite to the record. Plaintiffs explain that they cited in this manner in order to avoid lengthy repetitive answers. They argue that such answers would be overly lengthy because the defendants' statements of fact contain all encompassing factual and legal arguments.

Plaintiffs' conception of proper citation is certainly unique. In many of these thirty-four responses, plaintiffs merely refer to their response brief in its entirety with no specific citation to the record or even a page in the brief. In the interests of justice, however, the court will not strike these responses. Where the court is able to use these briefs and pleadings to locate more specific citations to the record, the court will consider such evidence.

Fifth, defendants move to strike responses to 99 statements because they do not contradict those statements. *fn5 As defendants argue, to the extent that plaintiffs' responses do not contradict the defendants' statements of fact, they will be deemed admitted to the extent that they are supported by the record. However, the court will not strike these responses. Many of these responses in fact contain statements and citations that at least potentially contradict the corresponding statements. Others do not. In addition, as noted, many of these responses merely deny and, without any explanation, merely cite to entire evidentiary document. Despite plaintiffs' half-hearted effort to comply with Rule 12(N), the court will not strike any of these responses. Instead, in the course of examining the motion for summary judgment, the court will address each statement, and look to the record in order to discern if it can locate evidence in support of Plaintiffs' denials or other assertions.

  1. Record.
Consolidated was engaged in the business of delivering liquor, wine, beer and other beverages to retailers. In the fall of 1991, Consolidated usually employed a core of 34 roster truck drivers to handle deliveries. These roster drivers were all represented by Teamsters Local Union No. 744 ("Union"). The collective bargaining agreement covering the roster drivers expired in March 1991. For the period thereafter relevant to the case, Consolidated and the Union negotiated for a new agreement. Under the terms of the collective bargaining agreement, however, the agreement remained in force while the parties negotiated.

Consolidated would employ "casual drivers" as needed. The record indicates that Consolidated regularly used as many as 12 casual drivers a day. In contrast to the roster drivers, the casual drivers were not unionized. However, their compensation and the conditions under which they were employed were set by Consolidated' s collective bargaining agreement with the Union. While many of these casual drivers had been employed by Consolidated for several years, there was also substantial turnover. Plaintiffs, Jessie Baron ("Jessie"), Maurice Justine ("Maurice"), James Govan ("James"), Stephen Hudson ("Stephen"), Eligah Williams ("Eligah"), Edward Newson ("Edward"), Willie Williams ("Willie"), Gerald Rodway ("Gerald") and Sylvester Ingram ("Sylvester"), *fn6 were all roster drivers for Consolidated.

In September 1991, Consolidated and NWS tentatively agreed to enter into a contract in which NWS would purchase substantially all of Consolidated's assets in the liquor business. On September 18, NWS executed a Memorandum of Understanding with the Union ("Teamster Memo") which: (1) permitted NWS to establish business-related requirements for employment, including drug tests, and evaluate job applicants based upon these requirements; (2) placed each driver hired on a 90-workday probationary period during which NWS could evaluate or discharge the drivers whose performance was not acceptable to NWS; (3) did not provide the driver or Union with a right to grieve a hiring or discharge decision during this period; (4) provided that former Consolidated employees hired by NWS would retain their prior seniority date, subject to completion of the probationary period; and (5) required NWS to sign the Union's standard agreement when finalized, but that the Teamster Memo would control if its terms conflicted with the standard agreement. The Teamster Memo also stated that NWS could evaluate the drivers based upon "lost time from work injuries record."

On September 20, NWS and Consolidated executed an Asset Purchase Agreement ("Agreement"). The Agreement provided that NWS had no obligation to hire any Consolidated employees, and that Consolidated would terminate all of its employees prior to the closing date for purchase. The Agreement also required Consolidated to provide NWS with access to all of its employment records, and to assist NWS in evaluating Consolidated employees for rehire. It provided NWS with "sole discretion" to contact Consolidated employees about rehiring on or after the closing date. That same day, Consolidated issued a letter informing its employees that it was planning to sell Union Liquor and that all of its employees would be terminated as of November 29, 1991. In an October 2 memo, Consolidated employees were further informed that they would have to fill out an application in order to be considered for employment with NWS. However, defendants' personnel files indicate that some drivers were hired without ultimately filling out an application.

James LaCrosse ("LaCrosse") is the owner of NWS. Around September 1991, NWS hired Joe Bridwell ("Bridwell") as its Vice President of Operations. During the fall of 1991, Bridwell was assigned to personally observe and evaluate the operations of Consolidated and to assess its buildings and equipment. During this period, Bridwell spoke with Consolidated's supervisors about the work performance of its drivers, mechanics, warehouse workers, and casual helpers, particularly with regard to the rehire with NWS.

In early November, Bridwell requested the driver and warehouse supervisors to provide written evaluations or rankings of their subordinates. Ian Baron ("Baron") and Frank Rudd ("Rudd") were Consolidated supervisors for their drivers. In response to Bridwell's request, each prepared write-ups on their drivers and separately met with Bridwell to discuss their opinions. Baron ranked roster and casual drivers from best to worst. Rudd instead provided narrative comments about the drivers on the seniority list.

Bridwell attests by affidavit that he reviewed the Daily Driver Summary sheets during this period. These sheets document each day's activities by the driver, with information such as delivery stops, number of pickups from customers, breakage, hours worked and overtime. Bridwell also interviewed each of the drivers personally as part of the hiring process. During this review process, Bridwell made no hiring commitments. Bridwell informed each driver that a final decision would be made prior to November 28, and that each applicant would be notified.

On October 9, a memo was distributed stating that Consolidated employees should attend a meeting with the NWS owners on October 20 if they wished to be considered for employment. At this meeting, LaCrosse spoke to employees regarding NWS' acquisition of Union Liquor. He informed the employees that the Teamster Memo would require them to submit and pass a drug test to obtain employment with NWS. He further stated that the urine samples would be taken at the conclusion of the meeting. A memo was handed out with a consent form; the memo stated that the drug test was mandatory and that refusal to take the test would disqualify the employee from consideration.

All drivers at the meeting except Jessie and Steve furnished urine samples. *fn7 Steve tried to, but could not, provide a sample. He was permitted to provide a sample on November 1. Jessie testified at deposition that he had previously heard that the Teamster Memo required employees to take a test for consideration and that he saw the memo handed out at the meeting. However, he testified that, before taking a test, he had heard from other employees that female attendants were administering and watching male subjects. *fn8 He testified that he believed that this violated federal regulations prohibiting this practice, and he decided to leave. He asserted that he did not speak with anyone about the matter at the time, because he feared that he would be fired if he caused a commotion. Jessie did not bring up the subject until he was informed that he was being terminated.

The testing of the samples was conducted by the Kildare Clinic, an independent company. Around October 20, the Kildare Clinic provided Yong with a list of employees that had tested positive. Of a total of around 287 tested employees, some seventeen tested positive for drugs. Testing positive for cocaine, plaintiff Maurice was among them. At deposition, the medical officer in charge of the test evaluations testified that Yong had instructed him to not verify any of the positive results. NWS did not hire any of the employees on this list. The record indicates that NWS hired a number of applicants who had not yet taken the drug test, on the condition that they subsequently take and pass the drug test. For instance, NWS hired an applicant, Alan Clay, but subsequently terminated him after his drug test showed positive.

In determining NWS' hiring needs, Bridwell looked to previous loss of orders for beer and wine. In addition, sometime in late November, Consolidated's beer manager, Thomas Demme, left to join a competitor taking a major account with him. From these figures and events, Bridwell concluded that NWS would lose a portion of Consolidated's business and that fewer regular roster drivers would be required. Specifically, he determined that NWS would require only 30 full time employees on December 2, along with casual drivers to meet fluctuating needs.

Bridwell asserts that he made the ultimate hiring decisions based upon the drug tests, input from the supervisors, documents provided by Consolidated, and his personal observations. Bridwell attests that NWS attorneys had advised him not to consider drivers' personnel files, attendance cards, accident reports or workers compensation reports. However, Bridwell's rankings appear to refer to worker compensation histories of a number of drivers, including plaintiffs Willie and Edward.

On November 29, pursuant to the Agreement, Consolidated terminated all of its employees. Of Consolidated's 34 roster drivers, Bridwell decided not to hire seven. Those not hired included Jessie, as he had failed to take the urine test at the meeting, as well as Maurice, who tested positive for cocaine. Bridwell also did not hire another roster driver, O'Connell, who tested positive. He did not hire James, asserting that he was not available for work on December 2, 1991, because he had not provided a medical release. Bridwell attests that, based upon his evaluations, he also rejected plaintiffs Stephen, Eligah and Edward. Although Bridwell hired plaintiffs Willie, Gerald and Sylvester, he subsequently discharged each during the probationary period. Bridwell attests that he also considered and hired four casual drivers for roster driver positions. Two of these drivers were under age 40 and two were over. In addition, he hired a new driver, Tom Sewing, who had been recommended by the Union. Sewing began work sometime in January 1992.

The plaintiffs subsequently filed the instant cause of action alleging that Consolidated and NWS had discharged or refused to hire them on the basis of their age in violation of the ADEA. In addition, plaintiffs Maurice, James, Eligah, Newson, Stephen, Gerald and Sylvester allege that they were discharged or rejected on the basis of their worker compensation claims with Consolidated. Defendants filed the instant motion for summary judgment on all claims. During the briefing, the defendants also filed a motion to strike the plaintiffs' 12(N) response to their proposed statement of uncontested fact. The court previously ruled by minute order denying the defendants' motion. Defendants subsequently filed a motion for reconsideration of that order with regard to the claims under the IWCA. Plaintiffs filed a motion to strike the motion for reconsideration.


  1. NWS' Motion for Summary Judgment.
  1. ADEA.
A plaintiff may demonstrate discrimination under the ADEA through either direct or indirect methods of proof used in other federal discrimination statutes. Testerman v. EDS Technical Products Corp., 98 F.3d 297, 301 (7th Cir. 1996). Under the direct method, the relevant inquiry is whether age was a "but for" cause of the challenged employment decision. Id. A plaintiff may proceed under this direct method using either direct or circumstantial evidence of age discrimination. See Kormoczy v. Secretary of HUD, 53 F.3d 821, 824 (7th Cir. 1995). But such evidence must relate directly to the specific employment decision in question. See, e.g., Randall v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1984).

The indirect method entails a three-part inquiry. See Rand v. CF Industries, Inc., 42 F.3d 1139, 1144-45 (7th Cir. 1994). First, the plaintiff must establish his prima facie case of discrimination by a preponderance of the evidence. See id. at 1144. Then, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the challenged employment act. Id. If the defendant produces this explanation, the plaintiff then must prove by a preponderance of the evidence that the reasons offered were not the true reasons, but were instead pretext for discrimination. See id. At 1144-45.

  1. Direct Proof.
Plaintiffs argue that the record provides direct proof supporting an inference of age discrimination. First, plaintiffs argue that the record indicates that Baron had referred to several of the drivers as "old" or indicated that they moved slowly, and particularly referred to plaintiff Eligah as "old man." Second, plaintiffs note that Rudd, in his employment evaluation, had described plaintiff Stephen as "set in ways" and further testified that, because he had been driving for 30 years, Stephen wouldn't let anyone tell him how to drive. Third, plaintiffs contend that LaCrosse had testified at deposition that older drivers could not carry cases the way younger drivers could. Plaintiffs argue that, combined with his decision to compel the Union to forgo seniority rights, this indicates LaCrosse's own age bias. Last, plaintiffs argue that the defendants' roster inclusion of the drivers' birth dates and seniority dates permit an inference of age discrimination.

First, Baron's alleged comments do not raise a permissible inference that the discharges were based upon age. While potentially insulting, stray references such as "old man" simply do not constitute the type of blatant remarks that constitute direct evidence of age discrimination. See Lindsey v. Baxter Healthcare Corp., 962 F.2d 586 (7th Cir. 1992) (stray descriptions of plaintiff as "old boy" do not support inference of age discrimination). Such comments, particularly passing references to the fact that an employee is "old," refer to the characteristic of age and not an evaluation of older workers. Relatedly, plaintiffs fail to raise any nexus between Baron's alleged references to drivers as "old" or "old man" and the ultimate employment decision. See Randall, 876 F.2d at 569.

Contained within his evaluation of the drivers, Rudd's comments on Stephen are connected to the challenged decision not to hire him. Similarly, his comments that Stephen was "set in ways" and subsequent testimony that he would be difficult to change his driving patterns are evaluative. However, this evidence simply does not provide the type of blatant comments that can support an inference of age discrimination. See Getschmann v. James River Paper Co., 822 F. Supp. 75, 78 (D.Conn. 1993), aff'd, 7 F.3d 221 (2d Cir. 1993). Rather, these appear on their face to provide performance related criticisms of Stephen. Plaintiffs' reliance on a Seventh Circuit dissent is not persuasive. See King v. General Electric, 960 F.2d 617, 628-29 (7th Cir. 1992). The King dissent opined that a supervisor's alleged generalization, that older workers are generally set in their ways, supported an inference that his contemporaneous employment decisions were discriminatory. See id. But in contrast to the statement at issue in King, Rudd's statement provides no indication that his criticism of Stephen was based upon his age and not an honest assessment of his work performance.

As to LaCrosse's deposition testimony, the plaintiffs rely upon a disingenuous characterization. Upon being questioned about whether he applied harsher performance standards to older drivers, LaCrosse testified about his views on varying aspects of driver performance. LaCrosse explained that older drivers could bring experience that would improve delivery performance, and concluded: "Whether [an older driver] can throw 50 cases a minute onto a truck that some young stud might be able to do, but the young man may not be able to find an account or drive a truck, I think is not relevant." Such a general reference to the speculation that some older drivers may not have the physical strength or stamina as a younger driver simply does not permit an inference of age discrimination. Similarly, LaCrosse's assertive employment strategy of compelling the Union to forgo most of its members former contractual protections, including seniority, in being assessed for the employment with NWS may raise inferences about LaCrosse's view of his employees' interests, but not of age discrimination.

  1. Burden Shifting Method.
To establish the prima facie case for a violation of the ADEA, a plaintiff must demonstrate: (1) he was age 40 or over; (2) he was qualified for the position for which he applied; (3) he was subject to an adverse employment action; and (4) a younger employee was treated more favorably. Rand, 42 F.3d at 1144. Defendants challenge whether three of the plaintiffs, Jessie, Maurice or James, satisfied the second element of their prima facie cases by meeting the legitimate expectations of NWS for the rehiring. Because the plaintiffs essentially respond to these claims by arguing that the expectations are pretext, the court will presume that each of the plaintiffs satisfied their prima facie cases, and will address the defendants' arguments at the pretext stage.
  1. Legitimate Non-Discriminatory Reason.
Defendants offer a number of related non-discriminatory reasons for refusing to accept the plaintiffs to driving positions with NWS or discharging them from such positions. With regard to Jessie and Maurice, the defendants argue that each plaintiff failed to pass NWS' requirement that they pass a drug test. With regard to James, defendants contend that they did not hire him simply because he was not available to work on December 2, 1991, when they were rehiring.

With regard to Stephen, Edward and Elijah, defendants first assert that, in light of losses in anticipated business, NWS decided that it would reduce the force of drivers from Consolidated's full roster of 34 to 30. Defendants then argue that information provided by Consolidated's supervisors for the drivers, Baron and Rudd, revealed particularly poor performance records for each of these three plaintiffs. With regard to Willie, Gerald and Sylvester, defendants contend that they ultimately discharged these employees because of continuing problems with high overtime.

Plaintiffs do not dispute that these reasons are legitimate or non-discriminatory, in themselves. Rather, plaintiffs assert that the record raises a genuine issue whether each proffered reason is pre-textual.

  1. Pretext.
  1. Statistical Evidence.
In order to demonstrate discrimination, plaintiffs first offer the statistical analyses of their expert, Robert Baade ("Baade"). According to the current record, Baade provides three analyses. First, he looks to the percentage of roster drivers in the protected class that were retained by NWS. He contends that there were 34 total roster drivers, of whom 25 were 40 or over, and 9 were under 40. Including subsequent discharges, he asserts that all 9 of the younger drivers were retained, but only 14 of the older drivers ultimately were retained. From these figures, he proposes that while 100% of the younger drivers were retained, only 56% of the older drivers were retained. More importantly, he concludes that this represents a 4.43 standard deviation.

Baade also provides a similar analysis looking to the mean age of Consolidated's roster drivers who were retained and not retained by NWS. He finds that the mean age of those retained was 43 while the mean age of those not retained was 49. He concludes that this represents a standard deviation of 10.26. Baade also proposes a similar analysis finding disparities in seniority of the retained and not retained roster drivers. For both of these analyses, Baade relied upon the same statistical pool used in his analysis above.

Since the briefing of the motion for summary judgment, defendants have submitted a motion to exclude Robert Baade's analyses, which this court denied, and a pending motion in limine that again argues to exclude his analyses. First, defendants attack Baade as having no expertise or specialized training in the field of employment economics or discrimination. Second, defendants assert that his first statistical analysis is not based upon sound scientific methodology or knowledge for five basic reasons: (1) his sample size is too small to provide meaningful statistics; (2) his use of "retention rates" is inappropriate because it fails to account for the actual circumstances of a complete discharge and subsequent rehiring from a larger applicant pool than simply the prior roster drivers; (3) he excludes a relevant group of similar job groups whose hirings were determined by the same decision maker; and (4) he failed to exclude some six employees that allegedly were not rehired because they failed to meet minimum qualifications.

Defendants also attack Baade's comparisons of the average age of retained and rejected roster drivers for the same reasons. In addition to attacking Baade's analysis of seniority levels on the same basis, defendants contend that this analysis is irrelevant to age discrimination.

A plaintiff may rely upon statistics in order to demonstrate pretext in a disparate treatment discrimination claim. See Box v. A&P Tea Co., 772 F.2d 1372, 1379 (7th Cir. 1986). However, the statistical evidence must be of the kind and degree sufficient to raise an inference of intentional discrimination. See Goetz v. Farm Credit Serv., 927 F.2d 398, 405 (8th Cir. 1991); see also Segar v. Smith, 238 U.S. App. D.C. 103, 738 F.2d 1249, 1274 (D.C. Cir. 1984). In fact, the Seventh Circuit has noted that statistical evidence, alone, seldom establishes a case for disparate treatment. Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 349 (7th Cir. 1997); see EEOC v. Texas Inst. Inc., 100 F.3d 1173, 1185 (5th Cir. 1996); LeBlanc v. Great American Ins. Co., 6 F.3d 836 (1st Cir. 1993); see also Hazlewood School Dist. V. United States, 433 U.S. 299, 307-08, 53 L. Ed. 2d 768, 97 S. Ct. 2736 (1977) (requiring gross statistical disparities). In the age discrimination context, in particular, statistical disparities usually must be "quite large" in order to support inferences of discrimination. See Matthews v. Allis-Chalmers, 769 F.2d 1215, 1218 (7th Cir. 1985).

After considering defendants' more thorough arguments attacking Baade's analysis in their motion in limine, the court finds that the plaintiffs' have failed to satisfactorily demonstrate that it is based upon sound methodology.

  1. Expertise.
As an initial matter, the court agrees that Baade's lack of training or experience in employment economics or employment discrimination is cause for concern. However, the court does not believe this fact alone undermines his ability to testify on these issues under Federal Rule of Evidence 702. Baade holds impressive credentials in economics and statistics. In light of his lack of specialized training, any testimony on the proper methodology for assessing employment discrimination statistics will be granted appropriate weight. See EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 326 (7th Cir. 1988). But the value and admissibility of Baade's testimony ultimately depends on any critical weaknesses in his methodology or information.
  1. Seniority Statistics.
As defendants argue, the Supreme Court has clarified that discrimination based upon seniority or years of service is not necessarily age-based and does not constitute a violation of the ADEA. Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 1707, 123 L. Ed. 2d 338 (1993). In addition, adverse employment decisions based upon seniority, even if they tend to affect older workers in greater numbers, do not violate the ADEA unless they are also based upon the plaintiff's age. See EEOC v. Francis W. Parker School, 41 F.3d 1073, 1077 (7th Cir. 1994). Furthermore, such evidence is not sufficient to ever infer age discrimination. See id. 1077-78.
  1. Objective Minimum Requirements.
Defendants accurately criticize Baade's analysis for including roster drivers who failed to meet NWS' minimum objective requirements for hire. In order to insure the integrity of statistics on disparities between the treatment of protected and unprotected groups, the analysis must eliminate the most common non-discriminatory explanations. Segar v Smith, 238 U.S. App. D.C. 103, 738 F.2d 1249, 1274 (D.C. Cir. 1984). In particular, they must exclude individuals that are not similarly situated because they failed to meet minimum objective qualifications for the relevant positions. Id.

NWS required every applicant to pass a drug test and to be available for work. With regard to the drug test requirement, two plaintiffs, Jessie and Maurice, failed to meet this requirement. Although the plaintiffs argue that these proffered explanations were pretext, as explained below, the record fails to support such an inference. Consequently, Jessie and Maurice must be excluded from any proper analysis attempting to show discrimination. In addition, another roster driver that had failed the drug test must similarly be excluded.

The court further notes that Baade inappropriately placed one driver in the discharge instead of the retained categories, William Stewart ("Stewart"). This driver was hired and not discharged until several months after the probationary period. Plaintiffs have not disputed that this driver pursued a grievance. Defendants' attached exhibit reveals that NWS discharged this employee for a specific incident of improper conduct with a customer. Consequently, the court fails to see how his subsequent discharge relates to Bridwell's hiring and discharge decisions associated with the reduction in force. *fn9

This alters Baade's figures by reducing the total roster drivers to 31, altering the drivers originally in the protected class to 22, and reducing the total drivers not retained to 7.

  1. Retention Rates and Casual Drivers.
Defendants further challenge Baade's focus on "retention" rates. Defendants argue that no roster drivers were truly retained, but rather that all were discharged by Consolidated. Subsequently, some were hired and others rejected by NWS. Defendants propose that an accurate evaluation must look to all those considered by Bridwell, who met the minimum objective qualifications, including four casual drivers.

Regardless of whether the challenged employment acts are viewed as discharges or refusals to hire as roster drivers for NWS, the critical comparison is with the pool of employees from which Bridwell considered choosing roster drivers for NWS. As explained with reference to minimum objective requirements, the individuals in this pool must be similarly situated. Plaintiffs fail to explain any critical distinction between the casual and roster drivers considered for the position, or any reason to conclude that Bridwell conferred a preference for Consolidated's roster drivers over the casual drivers. All were subject to the same review process and evaluated, with the help of Baron and Rudd, on past performance with Consolidated. All certainly held the same skills. Consequently, proper statistical methodology would include these four considered and hired applicants.

This would raise the total drivers to 35, and the drivers originally 40 years of age or older to 24.

  1. Relevant Job Classification.
Defendants further argue that Baade's statistics inappropriately exclude similarly situated applicants and employees who were considered by the same decision maker for all employees, Bridwell. In particular, defendants note that Bridwell was responsible for choosing among Consolidated's warehousemen and mechanics for employees to be hired by NWS. Defendants assert that these other categories reveal that 88 total individuals who applied with NWS for these positions had passed the drug test. *fn10 Of these, 59 were 40 or over, while 29 under 40. Defendants further assert that Bridwell hired 47 older applicants and all 25 younger applicants. These figures would minimize the disparity portrayed in Baade's narrower analysis. *fn11

Defendants argue that Baade's failure to include the sample groups undermine the scientific reliability of his results and the relevance of his conclusions to the question of Bridwell's discriminatory decisions. Precedent provides somewhat vague guidance as to the appropriate positions to consider in computing statistical analyses of employment discrimination. Often a broader sample covering a large portion or all of the defendant's workforce will favor one party's position while a smaller sample of a single department or position will favor the other party's position.

Although defendants argument has some force, the defendants have failed to demonstrate that Baade's decision to look to exclude these other job categories constituted an improper statistical methodology or otherwise undermines the relevance of his statistics as a matter of law. Cf. Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1430 (10th Cir. 1993) (concluding that proper jobs at-issue in disparate impact statistical analysis is question of fact). First, while plaintiffs' assertion that Bridwell's failure to discriminate against warehousemen or other organizational departments does not permit him to discriminate against roster drivers is true, it is beside the point. Plaintiffs do not raise these statistics to demonstrate a disparate impact in NWS' hiring process following the asset sale but to infer discriminatory motive in those hiring decisions. Thus, the impact of including or excluding these job categories on the relevance of the statistics to Bridwell's motive is the critical issue.

As a general matter, job categories included in the statistics should only include similarly situated employees. See Segar, 738 F.2d at 1274. Thus, employees without comparable skills or specialties should usually be excluded. See Furr v. Seagate Tech., Inc., 82 F.3d 980, 986-87 (10th Cir. 1996). While drivers may have distinct job descriptions from warehousemen, mechanics and other helpers, the record reveals that the positions are generally low skilled and have cross-over duties. The record further indicates that all of these employees were subject to a similar risk of rejection from NWS. After all, at least 5 Consolidated employees who were not roster drivers were not hired by NWS.

Moreover, as noted below, Baade relies upon a sample whose size renders it highly suspect. Courts will sometimes consider statistical analyses drawn from particularly small sample pools in order avoid penalizing discrimination plaintiffs from small companies. See Shutt v. Sandoz Crop Protection Corp., 944 F.2d 1431, 1433-34 (9th Cir. 1991) (citing Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1076 (9th Cir. 1986)). Where a larger relevant pool is available that would provide a more reliable analysis, there is no necessity to resort to the smaller sample. See id. (rejecting plaintiff's statistics based upon 11 laid off employees from department of 21 for statistics based upon 18 employees discharged in the layoff out of 106); see also Graffam v. Scott Paper Co., 870 F. Supp. 389, 397 (D.Me. 1994) (finding that analysis based upon total employees involved in reduction in force more revealing of discrimination than analyses of individual departments).

Although these factors favor the defendants' position, plaintiffs also note that Baron and Rudd participated in the selection process for drivers, though they did not participate in the selection of the other job categories. To remain relevant to inferring discrimination in the challenged employment act or decision, the statistics should address decisions arising from the same process. Accordingly, where a particular decision maker's motive is at issue, the statistics should exclude employment decisions that did not arise from that same decision maker. See Plair, 105 F.3d at 347. As defendants argue, the critical ultimate decision maker, Bridwell, determined the hirings for all of these job categories. By Bridwell's own admission, Rudd and Baron contributed to his evaluations of potential roster drivers--excluding those who failed the drug test or were not available for work. As noted below, with regard to Eligah, Edward and Gerald, the record indicates that Bridwell's final decision relied almost entirely on his acceptance of the factual input by Baron.

  1. Sample Size and Inference of Pretext.
The usefulness of a statistical analysis is dependent upon the size of the sample used: the smaller the size of the sample, the greater the possibility that any disparities are due to chance. See, e.g., Parker v. Federal Nat'l Mortgage Ass'n, 741 F.2d 975, 980 (7th Cir. 1984). As a general matter, statistics drawn from smaller samples are suspect and evaluated with caution. See Fisher v. Transco Services-Milwaukee Inc., 979 F.2d 1239, 1245 (7th Cir. 1992) (finding statistical comparison drawn from sample of 11 employees fired from group of 52 borderline); Soria v. Ozinga Bros., Inc., 704 F.2d 990 (7th Cir. 1993) (statistics "severely impaired" by small sample size of 61 drivers); see also Lucas v. Dover Corp., 857 F.2d 1397, 1403 (10th Cir. 1988) (sample of 18 must be evaluated with caution); Simpson v. Midland-Ross Corp., 823 F.2d 937, 943 & n. 7 (6th Cir. 1987) (sample of 17 suspect). In fact, statistics drawn from particularly small samples have been rejected as untrustworthy and irrelevant. See Parker, 741 F.2d at 980-81 (group of 12 employees too small to provide meaningful statistics); Deuschle v. Unisys Corp., 1992 U.S. Dist. 15932, 59 FEP Cases 1264, 1268 (C.D.Ill. 1992) (group of 15 employees lacked sufficient breadth to provide trustworthy basis of inference of discrimination), aff'd, 993 F.2d 1549 (7th Cir. 1993); see also Fallis v. Kerr-McGee Corp., 944 F.2d 743, 746 (10th Cir. 1991) (disparities in age groups of laid off workers insufficient to infer discrimination in light of small sample of 9 older workers out of total group of 42).

Baade draws his statistics from a group of 11 discharged employees out of a total pool of 34 roster drivers. As explained above, to account for minimal qualifications and other variations, this sample must be altered to some 35 total drivers with 7 total discharged employees. Such a sample is suspect, at best. The court recognizes that the Seventh Circuit reversed a grant of summary judgment against an ADEA plaintiff based upon a record where, out of 11 employees discharged by the defendant, only one was under forty, even though 25 of the total employees were under forty. See Fisher, 979 F.2d at 1245. Plaintiffs may argue that the zero of 7 that NWS rejected or discharged employees who were under 40 provides a similar sample.

But the court notes that Fisher indicated that it was addressing a border line case where the plaintiff should be provided with an opportunity to develop its statistical argument. See id. Baade's statistics are drawn from a somewhat smaller sample of total and discharged employees. Also, Fisher's gross disparity of zero fired unprotected employees even though half of the employees were under forty. In the present case, in contrast, almost as few as one quarter of the roster drivers were under forty. Finally, Fisher permitted the statistics to support a claim for disparate impact against the employer's evaluation system. The strength of the statistical evidence to support an inference of discriminatory intent is greater than the evidence required to demonstrate disparate impact. See Plair, 105 F.3d at 349; Shidaker v. Tisch, 833 F.2d 627, 631 (7th Cir. 1986); LeBlanc, 6 F.3d at 848.

Because the court finds that Baade must alter the information contributing to his statistical conclusions, it is difficult for the court to discern the impact of these alterations on his new statistics. The court notes, however, that the retention rate rises to about 70.8% from the original 56% claimed by Baade. Engaging in a layman's effort to imitate the apparent method of calculations used by Baade, the court notes that it still seems to reveal about 3.9 standard deviations in retention rates. While this figure would remain statistically significant, the probative value of this conclusion is greatly undermined by the small sample size used to derive it. *fn12 In light of this small sample size, as well as the gross disparities required to infer pretext, see, e.g., Plair, 105 F.3d at 349, the court cannot find that these figures alone raise a genuine dispute of age discrimination. However, the court will consider these statistical figures in combination with the evidence of pretext presented in support of each plaintiffs' claim.

  1. Motion in Limine.
In addition to seeking summary judgment, defendants have also submitted a motion in limine to exclude Baade's testimony and statistics. Federal Rule of Civil Procedure 702 requires that statistical analysis intended to demonstrate discrimination satisfy the standards of scientific methodology that the particular field would require for out-of-court research. People Who Care v. Rockford, 111 F.3d 528, 537 (7th Cir. 1997). As indicated above, the court finds that Baade's lack of specialized training in employment and discrimination matters does not render his analyses inadmissible under Federal Rule 702. Similarly, the fact that Baade did not base his statistics on all warehousemen, mechanics and other job positions reviewed by Bridwell does not render his analysis untrustworthy under Rule 702. Defendants' cross examination may very well elicit facts upon which a jury will get to examine in determining what, if any, weight should be accorded Baade's conclusions.

However, the court cannot permit Baade to present his statistics to the jury unless they account for other fundamental flaws identified in the preceding paragraphs. First, plaintiffs have failed to explain any relevance of Baade's statistics on comparative seniority levels. See Francis W. Parker, 41 F.3d at 1077. In light of the significant possibility that such statistics may prejudice or confuse the jury, these statistics are excluded pursuant to Federal Rule 702 and Federal Rule 403. Second, unless Baade's remaining analyses of retention rates and median age account for the three roster drivers who were fired for failing to meet the minimum objective requirements, Jessie, Maurice and O'Connell, they also are inadmissible. In order to submit his statistics to the trier of fact, Baade must also count Stewart as retained. Failure to account for the most salient or elementary explanations for a discrepancy undermines any value of a statistical conclusion, in this case the standard deviations and retention rates, in revealing the cause behind the discrepancy. See People, 111 F.3d at 537. Failure to omit these three employees constitutes a failure to follow the accepted methodology in the field, as well as undermining the relevance of the conclusions to the actual circumstances of the case. See Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir 1997).

Finally, before plaintiffs may present Baade's altered statistical analyses to a jury, however, they are directed to supplement for the court an explanation of Baade's method for calculating his standard deviation results from his figures, the official identity of that methodology, and any evidence in support of its acceptance in this field of employment discrimination.

  1. Record as to Individual Plaintiffs.
  1. Maurice.
Defendants explain that NWS refused to hire Maurice because he failed the October 20 drug test. Plaintiffs do not dispute that Maurice's test results were positive for drug use. Rather, plaintiffs argue that defendants' alleged violation of federal regulations in implementing the test raise a genuine issue of pretext. Plaintiffs claim that Yong, as a vice president for Consolidated, had instructed the medical review officer verifying test not to results contact Maurice to elicit or discuss any possible innocent explanations for his positive test result.

49 C.F.R. section 40.1 et. seq. provides the procedures for drug testing programs in a transportation workplace. Section 40.33 provides reporting and verification procedures for a positive result. It notes that a positive result does not automatically conclude that an employee is a drug-user. Rather, it requires the medical review officer to review the chain of custody of the positive sample, and to explore alternative medical explanations for the result. In conducting such an exploration, it states that the medical review officer shall first give the employee an opportunity to discuss the positive result.

The defendants do not argue that plaintiffs cannot provide any evidence in support of their claim that Yong instructed the medical review officer to forgo exploring innocent explanation for all the positive test results. Instead, they contend that this fact fails to raise any sort of genuine issue of pretext. In particular, defendants note that section 40.1 provides that it only applies to transportation employers required to conduct tests by DOT regulations. Defendants assert that NWS did not implement this drug test pursuant to DOT regulations, but rather independently provided the test pursuant to the Teamster Memo.

Defendants fail to conclusively demonstrate that the October 20 test was not governed by DOT regulations. The fact that NWS contracted with the Union to permit them to refuse employment based upon a drug test does not necessarily indicate that the test was not mandated by DOT regulations. In further support of their position, defendants point only to LaCrosse's affidavit stating that he always required all new employees to successfully pass a drug test. The court is also unclear on how this fact would demonstrate that the DOT regulations do not govern the October 20 test.

Assuming NWS violated DOT regulations by failing to appropriately confirm positive results, however, the question remains whether such a violation raises a genuine issue of pretext. Although evidence of unethical or even illegal conduct underlying an employment action may often raise an inference of pretext, it does not necessarily indicate discriminatory motive. See Visser v. Packer Engineering Assocs., Inc., 924 F.2d 655, 657-58 (7th Cir. 1991). The record may fail to indicate that the motive underlying the ethical or legal violation was discriminatory or somehow unclear. See id. The medical officer's testimony states that NWS's agent, Yong, did not provide any instruction with regard to a particular employee, but instead instructed that none of the positive results be confirmed. A brief review of the list of employees who tested positive, but were not provided with any review under DOT regulations, reveals that a minority of these employees were within the protected class of over 40 years of age. *fn13

NWS' administration of its drug test may well have improperly, or even unjustly, reviewed its employees. In fact, the record is unclear whether NWS violated federal standards of fair treatment. But the record presented by the plaintiffs fails to permit an inference that this unfair treatment would have been motivated in order to separate out older employees. Rather, it would only reveal NWS' disregard for fair treatment of its employees: unfair treatment neither appears disproportionately directed toward, or to have effected, older employees. Consequently, the record does not indicate that NWS' proffered explanation for its decision not to hire Maurice was pretext. *fn14

  1. Jessie.
Defendants contend that NWS refused to hire Jessie for a new position because he refused to take the October 20 drug test. In support of their assertion that this reason is pre-textual, plaintiffs note that defendants' records indicate that some eight other employees also failed to take the October 20 drug test, but were ultimately hired by NWS. Plaintiffs also argue that the record reveals that Jessie refused to take the October 20 for what he believed, at least, were legitimate reasons; he had heard that others at the meeting that female attendants were watching male subjects as they urinated.

The record simply provides far too speculative or tenuous a basis to infer that NWS' expectation of taking the test was pretext. Although plaintiffs accurately point out that several other employees were permitted to take later drug tests, they have not disputed that any of these employees, except Steve, attended the October 20 meeting. In light of the fact that it was stated at the meeting that the test was mandatory, this reveals that the other employees' different treatment was based upon the fact that they were not similarly situated.

The fact that Jessie may have honestly felt that the test was improperly administered does not alone raise a genuine dispute that NWS' expectation was pre-textual. Jessie does not dispute that he wasn't aware that the test was mandatory. He never raised his objections, either during the meeting or afterwards, to the administration of the test. Instead, he quietly disappeared. In contrast, Jessie's coworker, Steve, had immediately made clear that he was unable to provide a sample at that time, and was permitted to submit to a test at a later date. This record also fails to raise a permissible inference that NWS' proffered reason for not hiring Jessie was pre-textual. *fn15

  1. James.
Defendants contend that NWS did not hire James because he simply was not available for work in December 1991. Plaintiffs respond that at least three roster drivers were not hired until well after the December 2d date. In particular, they point to Russ Lyewski, age 38, who was also on workers compensation leave during December, but ultimately hired for a position with NWS the following January.

Defendants do not provide any real argument to explain any distinction between James and other drivers who allegedly were not available for work on December 2 but then hired at a later time. Rather, they rely upon the fact that there is no genuine dispute that James was not available for work on December 2, 1991. But it is clear that NWS still permitted Lyewski to later return to work, even though he was similarly on medical leave, and subsequently provided a medical release. Plaintiffs have submitted evidence at least indicating that James had also provided a medical release. In light of this record, and defendants failure to distinguish Lyewski, the court finds that plaintiffs have raised a genuine dispute that NWS' proffered explanation for nothiring James is pre-textual.

  1. Stephen, Edward and Elijah.
Defendants contend that NWS did not hire Stephen, Edward and Elijah because a reduction in force compelled it to choose among the available drivers from Consolidated, and that each of these employees had inferior work records. Plaintiffs first contest whether any reduction in force was necessary. They point out that, in December 1991, the month of the hirings, NWS delivered a greater number of cases of liquor than in December 1990. Plaintiffs further assert that NWS never eliminated any of the delivery routes formerly covered by the discharged employees, and that Consolidated and then NWS continued to hire new roster and casual drivers from September 1991 through February 1992.

As an initial matter, plaintiffs' efforts to attack the economic justification for Bridwell's decision to reduce the workforce must fail. Courts generally will not entertain arguments challenging the business wisdom of decisions to lay off workers or otherwise reorganize. See Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 151-52 (7th Cir. 1994). A court generally lacks the necessary information and competence to second-guess such decisions. See, e.g., Smith v. General Scanning, Inc., 876 F.2d 1315, 1321 (7th Cir. 1989). Besides, the anti-discrimination courts do not provide courts with the authority to sit as super-personnel departments to re-examine the wisdom of an employer's ultimate balancing of the risks and rewards in entering into a strategy. See McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992).

In his affidavit, Bridwell attests that he had decided that reduction in force was necessary in light of a record of lost orders in the period preceding December 1991. Plaintiffs have not disputed the accuracy of the facts upon which Bridwell claims to have relied in anticipating a downturn in business. In fact, plaintiffs do not provide any evidence undermining Bridwell's conclusion other than the fact that the business did not ultimately suffer. But this provides no indication that Bridwell is lying or, for that matter, that he had exercised poor judgment. It only reveals that facts proved his prediction wrong. Neither is the court convinced that plaintiffs' statistical evidence raises a permissible inference that Bridwell's asserted need to reduce roster drivers was pre-textual.

  1. Stephen.
As to Stephen's alleged poor performance, the court finds an issue of fact whether this reason alone supported the decision. At deposition, when asked if his decision not to hire Stephen was based upon any factor other than his overtime record, Bridwell answered "no." *fn16 In his later affidavit, Bridwell attests that he based his decision in part on Stephen's performance. In addition, plaintiffs do not appear to dispute that Baron composed the performance listing entered into evidence, and that this listing placed Stephen at the bottom. But a party is not permitted to create a genuine dispute by contradicting prior deposition testimony through an affidavit. See Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1168 (7th Cir. 1996). For the same concerns underlying this rule, the defendants cannot extinguish a genuine dispute by contradicting prior deposition testimony. Bridwell may have merely forgotten about his other reasons at deposition. However, determination of this matter is best left to the trier of fact. Consequently, the court will only consider Bridwell's reliance on Stephen's overtime record.

With regard to overtime, plaintiffs point out that four roster drivers had higher overtime records during the relevant period, but were retained by NWS. Defendants respond that plaintiffs merely calculate overtime on a distinct basis: Bridwell only looked to unauthorized overtime, and looked at this overtime in light of circumstances such as weather, customer demands, the number of cases and stops and vehicle or traffic problems. In support, defendants rely upon Bridwell's supplemental affidavit attesting to this calculation for the first time.

Although plaintiffs' have not provided any specific evidence refuting this explanation, the court still finds a genuine dispute. Bridwell provides only the vague explanation of his considerations. The only portion of the record that the court could locate that referred to "unauthorized overtime" did support Bridwell's assertion that Stephen had greater unauthorized overtime than three of the four retained drivers identified by the plaintiffs. However, the record still reveals that driver McGeever had considerable more "unauthorized overtime" than Stephen, but was still hired by NWS. In light of Bridwell's vague contextual factors, and the fact that a retained driver had greater "unauthorized overtime" than Stephen, the record provides some question as to Bridwell's proffered basis for rejecting Stephen, excessive overtime, was pre-textual. At least when combined with plaintiffs' statistical evidence, the court finds a genuine dispute as to the actual basis for Stephen's termination.

  1. Eligah.
Defendants assert that NWS decided not to hire Eligah because of his poor accident and attendance record. They contend that Baron reported to Bridwell that Eligah had the worst accident record of all roster drivers. In addition, they assert that Baron told Bridwell that Eligah had a particularly poor attendance record.

Plaintiffs respond that Eligah in fact did not have the worst accident record, and that two roster drivers with worse accident records were retained by NWS. Plaintiffs further argue that, because Baron ranked Eligah as 14th among the 34 drivers in performance, that Bridwell should have been on notice to check on any claim that Eligah had the worst record. As to his attendance record, plaintiffs contend that four drivers had worse attendance records but were still retained.

At deposition, Bridwell conceded that two other roster drivers, Sheperd and Bray, had worse accident records than Eligah. In the six years prior to the sale of Consolidated, Eligah was involved in some ten accidents, five of which were reported as his fault. Sheperd had been involved in seven accidents that were his fault, and Bray some nine accidents that were reported as his fault. However, Bridwell testified that he had never seen the accident records revealing the relative accident statistics of the drivers prior to making the decision not to hire Eligah. Rather, he had previously merely relied upon the alleged statement by Baron.

A plaintiff does not demonstrate pretext merely by showing that a proffered explanation was not true; Rather, the record must raise an inference that the explanation is a lie. Russell v. Acme Evans, 51 F.3d 64, 68 (7th Cir. 1995). Even if the fact that the explanation is improper or perhaps irrational generally is not sufficient to raise a genuine issue of pretext. See Pignato v. ATA, 14 F.3d 1342, 1349 (7th Cir. 1994). Plaintiffs' only evidence of Bridwell's subterfuge is his reliance on Baron's accusation of the worst accident record despite Baron's ranking Eligah 14th out of some 30 roster drivers. The court does not dispute that this apparent discrepancy should have prompted Bridwell to further investigate Baron's statement. However, Bridwell's failure alone does not support an inference of discrimination, but simply bad judgment.

Bridwell did rely upon Baron's statement without making any effort to verify it. In such circumstances, it is clear that Baron had significant input in the decision to not hire Eligah. Where a plaintiff demonstrates that an official with discriminatory animus against him provided factual information or other input that affected the challenged employment decision, summary judgment is improper. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1459 (7th Cir. 1994); Jariden v. Winston Network, Inc., 888 F.2d 1151, 1155 (7th Cir. 1989); Gusman v. Unisys Corp., 986 F.2d 1146, 1147 (7th Cir. 1993). Consequently, if the record raises an inference that Baron harbored discriminatory animus against Eligah, this could raise a genuine dispute whether the decision not to hire Eligah was based upon age discrimination. As noted above, plaintiffs' direct evidence of Baron's discriminatory animus is insufficient to support such an inference. Thus, the only evidence of discriminatory animus left would be the inaccuracy of Baron's information to Eligah. However, as with Bridwell, the record merely reveals that Baron was in error. The record still reveals that Eligah had a substantial accident record that placed him worse than most drivers. In fact, though younger than Eligah, Bray and Sheperd each were well over 40 years of age. Consequently, even in light of plaintiffs' statistics, this error alone does not raise a permissible inference that Baron's statement to Bridwell was pretext for age discrimination.

  1. Edward.
Defendants contend that NWS decided to not hire Edward for a mix of reasons. First, they note that Baron ranked Edward in the bottom half of drivers for performance, and that Rudd had also indicated that he should be "watched for probation" if hired. Most importantly, Bridwell testified that Baron had told him that Edward was argumentative with customers and supervisors. Plaintiffs do not present any evidence directly attacking Bridwell's reliance on Baron's report. Rather, plaintiffs challenge the veracity of Baron's claim. *fn17 Plaintiffs point out that, while Baron testified that he received excessive complaints from customers about Edward, that he neither officially disciplined Edward nor created any sort of written record on these complaints. In addition, Baron could not identify any specific client that had complained about Edward.

As with Eligah, the question comes down to whether the record raises an inference that Baron's input to Bridwell was a lie based upon age discrimination. However, in contrast to Baron's statement, the court is provided with absolutely no evidence of the history of complaints against Edward other than Baron's testimony. Baron also conceded he never disciplined Edward for any these complaints or behavior problems. In light of the nature of Baron's assertions of argumentative and uncooperative behavior, a reasonable jury could infer from this lack of any record or supporting evidence that Baron's assertion is a fabrication. If the jury could infer that his claims to Bridwell were pretext, it could infer that his lie would have been based upon age discrimination. Defendants do not dispute that Baron's claims played a significant role in Bridwell's decision to reject Edward. Although tenuous, the court finds a genuine issue of fact of pretext as to Edward.

  1. Gerald, Willie and Sylvester.
In contrast to the other plaintiffs, NWS hired Gerald, Willie and Sylvester in December 1991. However, Bridwell subsequently discharged each of these three employees during the probationary period.
  1. Willie.
In support of their decision to terminate Willie, defendants primarily point to his overtime record. Prior to December 2, Willie had the worst overtime record of any employee. Rudd had labeled Willie as one of three "overtime kings." In addition, Baron had ranked Willie second to last in terms of performance.

Plaintiffs provide rather languid arguments from which to infer pretext. They argue that, because Bridwell decided to retain Willie despite his admittedly worst overtime record, they should not be permitted to rely upon his continuing overtime problems in support of their decision to ultimately fire him. Plaintiffs note that, if one looks to overtime per days worked, Willie's overtime record after December 2 was no longer the worst of any roster driver, and in fact four other drivers had worse records. Regardless of whether plaintiffs' mode of analyzing overtime is more accurate, the ADEA does not require the defendants to have used it. More importantly, defendants claim to have fired Willie because of his past and continued record of overtime. The fact that his record was not the worst after December 2 does not mean that defendants could not, as they claimed to have, considered Willie's post-December 2 record in light of his prior record. In light of this record, and also considering plaintiffs' statistics, the court finds no genuine dispute of pretext as to NWS' proffered explanation for discharging Willie.

  1. Gerald.
Defendants argue that NWS discharged Gerald similarly for a poor continuing overtime record. Defendants do not cite to any evidence demonstrating Gerald's overtime record. However, they do cite to deposition testimony of Baron and another supervisor, John Kolosci, asserting that they had met with Gerald to discuss his overtime problems. Most importantly, Baron and Kolosci alleged that Gerald had admitted to them that he wrongfully took unearned overtime in order to support his lifestyle.

The record does indicate that Gerald had some overtime problems. As plaintiffs point out, Rudd had not identified Gerald as having excessive overtime in his evaluation for Bridwell or at deposition. But the "unauthorized overtime" records do reveal that, during the months preceding the sale of Consolidated's assets, Gerald had more such overtime than all but one retained roster driver, McGeever. This record does not undermine Bridwell's characterization of Gerald as taking high overtime. On the other hand, these same records indicate that three retained roster drivers with NWS had higher "unauthorized overtime" than Gerald.

Defendants also rely upon Baron and Kolosci's testimony that Gerald had admitted to wrongfully taking overtime from NWS. The problem with their position is that Gerald disputes this admission. Instead, he testified that he told Baron that he picked high overtime routes in order to make extra money to assist in his daughter's education. This dispute over what Gerald actually told Baron and Kolosci presents a factual issue. As the record fairly clearly demonstrates that this alleged admission was a significant, if not critical, factor in the decision to discharge Gerald, the court finds a genuine issue of pretext.

  1. Sylvester.
Defendants assert that Bridwell discharged Sylvester because of his continuing record of missing stops. Bridwell testified that Baron had warned him that Sylvester missed or passed a lot of stops. During the probationary month of December 1991, the records then revealed that Sylvester missed 30 stops, failing to deliver over 200 cases of liquor. Bridwell testified that, based upon his prior record in combination with his missed stops in December, he then decided to discharge Sylvester.

The record reveals that Baron had given Sylvester a termination notice in 1989 for missing stops that was subsequently overturned. Plaintiffs do not dispute that Baron had previously warned Sylvester about his missing stops. In addition, plaintiffs do not dispute that Sylvester missed 30 stops during December 1991. Plaintiffs also offer no evidence to dispute that Baron had warned Bridwell that Sylvester had often failed or refused to make scheduled stops or pick up merchandise. Rather, plaintiffs challenge whether Sylvester's record of missing stops was in fact worse than all or even most other drivers. Plaintiffs contend that both during the preceding months and December 1991 Sylvester in fact had fewer missed stops than the average driver for Consolidated and then NWS.

As with regard to Eligah and Edward, the record raises no dispute that Bridwell's claim that he was informed that Sylvester had a prior stop problem was pretext. But plaintiffs hope to demonstrate that Bridwell's claim is pretext by showing that Sylvester in fact had a lower missed stop record than the average roster driver; in particular, they hope to demonstrate that Sylvester had a better than average record on missed stops during December 1991. Neither party directs the court to any testimony where Bridwell asserted that Sylvester had missed more stops than the average driver during the probationary period. While not necessarily so, Bridwell's testimony appears best interpreted to assert that Sylvester suffered from a poor missed stop record during this period.

Unfortunately, neither party has provided the court with any basis to resolve this dispute. Plaintiffs refer only to their own summary of their calculations, but provide none of the underlying material from which they derived these calculations. The only attachment of daily record located by the court appears to be mistaken submissions of the daily records for the fall and winter of 1992, not 1991. Defendants argue that there is no reason that they should be bound by the calculations of plaintiffs' counsel; Bridwell calculated missed stops in a manner he saw fit. Whether or not defendants are correct, they fail to provide this court with any alternative computation used by Bridwell or identify some distinction in how Bridwell computed and considered missed stops. In light of these ambiguities, the court finds a genuine issue as to whether the defendants' proffered basis for discharging Sylvester, his missed stop record, was pretext.

In sum, the court finds that the record does not raise a permissible inference of pretext as NWS' proffered explanations for rejecting or discharging plaintiffs Jessie, Maurice, Eligah and Willie. Accordingly, the court alters its original ruling and grants defendants' motion for summary judgment as to the ADEA claims by these plaintiffs. However, the court denies NWS' motion for summary judgment as to the ADEA claims by plaintiffs James, Stephen, Edward, Gerald and Sylvester.

  1. Illinois Workers' Compensation Act.
In addition to the same evidence of pretext referenced above, plaintiffs submit three general types of evidence that the defendants discharged or refused to hire the plaintiffs based upon their worker compensation records. First, plaintiffs point to NWS' provision in the Teamster Memo reserving the right to make hiring determinations based upon work injuries. Second, plaintiffs look to a copy of Bridwell's rankings of employees which note that certain of the ultimately rejected or fired drivers, including plaintiffs Edward and Willie, had filed worker compensation claims. Relatedly, plaintiffs note that Bridwell had previously asserted that he was not aware of any worker compensation histories of the employees. Third, plaintiffs note that NWS had admitted that it refused to consider for hiring those employees not available to work because they were on medical leave.
  1. Preemption.
Defendants first contend that plaintiffs' IWCA claim is preempted by section 301 of the Labor Relations Management Act. State law claims are preempted by section 301 of the LMRA if resolution of the claim depends upon the meaning or interpretation of a collective bargaining agreement. Lingle v. Norge Div. Of Magic Chef, Inc., 486 U.S. 399, 405-06, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988). This broad preemption is based upon the need for uniform interpretation of collective bargaining agreements through labor arbitration. See id. In Lingle, for instance, the Supreme Court found that a claim under the IWCA was not preempted by the LMRA because it involved the same factual analysis required under the plaintiff's collective bargaining agreement wrongful discharge provisions. The similarity, or even identity, of analysis did not require the court to interpret the agreement to resolve the claim.

A claim under the IWCA requires the plaintiff to demonstrate that his discharge from employment was causally connected to his filing of an IWCA claim. See Hiatt v. Rockwell International Corp., 26 F.3d 761, 767-68 (7th Cir. 1994) (Illinois law). The Seventh Circuit has explained that federal courts should apply the analysis of McDonald-Douglas in considering this element of the IWCA. See id. at 767 & n. 4. Defendants argue that, because plaintiffs rely upon their reading of the Teamster Memo to infer that NWS' proffered explanations for their discharges are pretext for worker compensation based discharges, their claims depend upon an interpretation of a collective bargaining agreement.

In particular, defendants point to Chief Judge Moran's concurrence in Kohl's Food Stores, Inc. v. Hyland, 32 F.3d 1075 (7th Cir. 1994), in arguing that plaintiffs' claims are preempted. The decision in Kohl held that a plaintiffs' Wisconsin worker compensation claim was not preempted by the LMRA. See id. at 1078-79. Plaintiff had alleged that his employer refused to rehire him because of his worker compensation claim. To succeed on his claim, the plaintiff would have to demonstrate that, despite his medical condition, the employer had suitable work available for him. See id. at 1077-78. The employer had argued that resolution of suitable work would depend upon interpreting provisions of the parties' collective bargaining agreement. The court disagreed, explaining that, while the collective bargaining agreement might provide relevant evidence, the statutory standard of suitable work did not necessarily depend upon the agreement. Id. at 1078-79. In his concurrence, Chief Judge Moran noted, in dicta, that he believed the claim would be preempted if the suitability of other work ultimately depended on the plaintiffs' seniority rights under the collective bargaining agreement. Id. at 1079.

This view was adopted by the court for the Northern District of Alabama in Vines v. Sloss Industries Corporation, 1996 WL 806682 (N.D.Ala. Nov. 25, 1996). The plaintiff filed a state statutory claim asserting that he was denied the right to return to work because of his worker compensation claim. See id. at *1. However, because the plaintiff's right to rehire, in the first place, depended upon whether the collective agreement provided him with the right to return to work, the court found that the claim ultimately depended upon its reading of the collective bargaining agreement. Id. at *4. Consequently, the court found the claim preempted. Id. Similarly, the district court of Louisiana found plaintiffs' state law race discrimination claim preempted where the employer's proffered non-discriminatory reason for the challenged transfer was based upon its reading of seniority rights under the parties' collective bargaining agreement. See McCall v. McQueen, 962 F. Supp. 890, 893 (E.D.Ls. 1997).

However, the instant claim is distinguishable from each of these preempted state law claims. Plaintiffs do not present the Teamster Memo in order to argue that it provides some sort of qualitative standard at the heart of their IWCA claims. See also Rice v. Panchal, 65 F.3d 637, 643-45 (7th Cir. 1995) (applying Lingle to preemption under ERISA, interpreting case law as finding preemption where state law applies qualitative standard arising with contract). Instead, they merely present it as evidence that NWS and Bridewell's assertion of valid bases for the challenged employment acts and to refute plaintiffs' claims of pretext. See also Jarvis v. Nobel/Sysco Food Services Co., 985 F.2d 1419, 1426-27 (10th Cir. 1993) (worker compensation claim not preempted because depended upon employer's good faith interpretation of the collective bargaining agreement and not necessarily the actual rights conferred thereunder); cf. Rice, 65 F.3d at 644-45 (fact that defendant's liability under agency theory relied solely upon evidence of contractual relationship defined by an ERISA plan did not render state law claim preempted). Plaintiffs do not even base their claims of pretext on the assertion that NWS breached some right conferred to them under the Teamster Memo; Rather, they contend that the rights NWS sought under the Teamster Memo support an inference that they based the challenged employment decisions upon the plaintiffs' worker compensation histories.

In fact, plaintiffs' successful use of this evidence does not ultimately rest upon the actual legal interpretation of the provision in question. Regardless of the correct legal interpretation of the provision, the critical issues are the factual questions of (1) Bridewell's good faith interpretation of what the Teamster Memo provided him with the right to consider, and (2) whether Bridewell actually ever considered the plaintiffs' worker compensation histories. Consequently, plaintiffs' use of the Teamster Memo, and even their reading of its provisions, does not render their claims preempted under section 301 of the LMRA.

Defendants have also since submitted a motion in limine to exclude any arguments concerning the meaning of the provisions of the Teamster Memo. In this motion, defendants reassert their preemption argument, and further stress the potential confusion and prejudice arising out of arguments over the correct legal interpretation of the Teamster Memo. The court shares defendants' concern over possible confusion and prejudice if the parties draw the focus of their arguments to the correct legal interpretation of the provision instead of the factual issue of Bridewell's understanding of the Teamster Memo. However, plaintiffs appear to rely upon the plain terms of the provision. Defendants, in turn, have only pointed to Bridewell's own deposition testimony explaining his understanding of the Teamster Memo and the critical provision. The court fails to see how these examinations would raise confusion or prejudice that would substantially outweigh the potential relevance of the provision of the Teamster Memo. If either parties' arguments appear to reach further into the issues of the proper legal interpretation of the Teamster Memo, the parties may raise the matter to the court's attention at that time.

  1. Rejected Employees.
Five of the plaintiffs raising IWCA claims were never hired by NWS. *fn18 Defendants contend that, regardless of the basis of NWS' decision to not hire them, NWS cannot be liable under the IWCA for retaliatory discharge. While the parties were filing their original briefs on this motion, the Illinois Supreme Court interpreted the IWCA to very narrowly cover discharges, and to exclude constructive discharges or other adverse employment acts. Zimmerman v. Buchheit, Inc., 164 Ill. 2d 29, 645 N.E.2d 877, 206 Ill. Dec. 625 (Ill. 1994). Two subsequent federal cases have interpreted Zimmerman to exclude IWCA claims in instances where the employer expressly moved the plaintiff to an inferior position that provided nothing to do that was 250 miles from home, in order to drive him to quit, Pope v Inland Property Mgt., Inc., 878 F. Supp. 1114 (N.D.Ill. 1995), and where an employer refused to accommodate a plaintiff's medical restrictions. Cagle v K-5 Constr. Co., 1996 WL 452270 (N.D.Ill. Aug. 5, 1996).

As a general matter, the IWCA does not cover refusals to hire, but only discharges or refusals to "rehire." See 820 ILCS 305/4(h). Consequently, the critical question is whether NWS rejection of the plaintiffs can be construed as a discharge or a "rehire." Plaintiffs do attempt to raise an argument that NWS' decision against them was a "rehire." *fn19 Because NWS contractually required Consolidated to engage in the discharge, Consolidated arguably was acting as NWS' agent when it discharged all of its employees. Plaintiffs appear to assert that NWS had Consolidated conduct this discharge as part of its plan not to hire employees who had taken advantage of their workers' compensation rights. They characterize NWS' current argument as a mere semantic game, and contend that Consolidated and NWS acted jointly in deciding to discharge and retain certain employees with NWS.

The only case cited by plaintiffs on this matter, Brown v Keystone, 680 F. Supp. 1212 (N.D.Ill. 1988), addressed a claim under the ADEA, not the IWCA. In Brown, the employer had allegedly created a sham shell company (formerly owned by its officer) to purchase one of its divisions, and pursuant to a sham asset sale agreement, the shell company subsequently terminated all employees. The court found the employer still liable under the ADEA, despite the fact that it was no longer the plaintiffs' employer, because the detailed allegations of a conspiracy between the employer and the shell were adequate to infer the employer's liability. See id. at 1228. But this issue involves the IWCA, along with its narrow interpretation of only covering retaliatory discharges. In addition, plaintiffs' complaint does not contain any allegations of the type of intimate relationship between NWS and Consolidated that appeared to exist in Brown that presumably supported the conspiracy claim.

Plaintiffs provide no precedent or case law supporting a theory of joint or conspiracy liability of a party that is not an employer for retaliatory discharge. Upon questioning by the court at oral argument, plaintiffs conceded that they are not pursuing any sort of alter-ego theory. In fact, precedent indicates that in order to succeed on an IWCA retaliation claim, the plaintiff must show that he was an employee of the defendant prior to the injury giving rise to the worker compensation claim at issue. See, e.g., Motsch v. Pine Roofing Co., 178 Ill. App. 3d 169, 533 N.E.2d 1, 4, 127 Ill. Dec. 383 (1st Dist. 1988). As plaintiffs were never in NWS' employee, it is difficult to see how they could demonstrate this element.

For these reasons, the court grants the defendants' motion for reconsideration of its prior ruling denying their motion for summary judgment with regard to these five plaintiffs' IWCA claims against NWS. *fn20

  1. Discharged Employees.
However, the defendants concede that NWS in fact discharged two plaintiffs raising IWCA claims, Sylvester and Gerald. As noted above, the instant record raises a genuine dispute with regard to the defendants' proffered explanations for the decisions to discharge these employees. Accordingly, the court denies the defendants' motion for summary judgment with regard to Sylvester and Gerald's IWCA claims against NWS.
  1. Consolidated's Motion.
In addition to joining NWS' arguments, Consolidated also moves for summary judgment as to both counts arguing that it is simply not the proper party in suit. Because it discharged all of its employees at once, Consolidated asserts that it cannot possibly have discriminated against some on the basis of age or their workers compensation history. Conversely, Consolidated argues that it did not engage in the actual challenged employment act of the refusal to hire. In fact, Consolidated points out that it was no longer the plaintiffs' employer or potential employer at that time.
  1. ADEA.
Consolidated provides its own legitimate non-discriminatory reason for its discharge of the employees; as part of its sale of assets to NWS, it contractually agreed to discharge all employees. In order to hold a defendant liable under the ADEA, the plaintiff must demonstrate that the defendant intentionally engaged in the challenged conduct on the basis of the plaintiff's age. See Noreuil v. Peabody Coal Co., 96 F.3d 254, 258 (7th Cir. 1996). Plaintiffs conceded to the court that they do not pursue an alter-ego theory to hold Consolidated liable. Consequently, in order to raise an inference of discrimination or pretext, the record must raise a genuine dispute that Consolidated discharged the employees with the knowledge and intent that they would be discriminated against on the basis of their age.

However, plaintiffs also argue that Consolidated is liable for the participation of its employees in NWS' decisions not hire or discharge them. In addition to agreeing to the discharge of its employees, Consolidated also agreed to assist NWS in choosing among its employees for hire by NWS' acquisition. With regard to hiring roster drivers, Consolidated employees Baron and Rudd each assisted Bridwell in assessing each of the plaintiffs pursuant to this agreement. Therefore, through Baron and Rudd Consolidated acted as NWS' agent in assessing its own employees for hire as roster drivers for NWS.

The Seventh Circuit has generally indicated that a supervisor or agent of a defendant is not liable in its individual capacity under the ADEA. See Vakharia v. Little Co. of Mary Hospital, 917 F. Supp. 1282, 1296 (N.D.Ill. 1996). But these decisions each noted that such supervisors are not individually liable, where they do not otherwise constitute an employer as defined by the ADEA. See id. Defendants have not provided a convincing argument that Consolidated did not constitute an employer as defined by the ADEA. Therefore, Consolidated may still be liable for the conduct of the discriminatory acts of its own employees to the extent that they participated in the decision making process for the hiring and discharge of the plaintiffs. *fn21 See also Jones v. Metropolitan Denver Sewage Disposal Dist., 537 F. Supp. 966, 970 (D.Col. 1982) (explaining agent and supervisor liability exists to the extent that the agent participated in the challenged decision). The current record permits an inference that Rudd and particularly Baron participated in the challenged decisions. Consequently, Consolidated's motion for summary judgment is denied with regard to plaintiffs James, Stephen, Edward, Gerald and Sylvester.

  1. IWCA.
With regard to the IWCA, however, the record fails to raise any genuine issue that Consolidated's proffered explanation for its act of discharge was pretext. As noted, Consolidated argues that it discharged all of its employees on December 2, 1991, pursuant to its Asset Sale Agreement with NWS; the purchasing party set as a condition of the sale that Consolidated discharge its employees just prior to the sale. It is undisputed that NWS contracted with Consolidated that Consolidated must discharge all of its employees before the actual sale of its assets occurred. Consolidated engaged in a mass egalitarian layoff at the behest of NWS.

To succeed on a retaliatory discharge claim under the IWCA, the plaintiff must demonstrate the defendant's actual motive in engaging in the discharge. See, e.g., Roger v. Yellow Freight Systems, Inc., 21 F.3d 146 (7th Cir. 1994) (Illinois law) (critical issue is whether the primary intent for discharge was to retaliate against the employee for exercising his rights under the IWCA). Consequently, to hold Consolidated liable under the IWCA, the record must raise a permissible inference that Consolidated exercised its layoff with the motive or intent of removing those employees for exercising their worker compensation rights while working under Consolidated.

Assuming that the record raises a permissible inference that NWS required Consolidated to discharge its employees as part of a plan not to rehire certain employees, including the plaintiffs, to retaliate against them for filing IWCA claims, the plaintiffs fail to explain how this record raises a permissible inference that Consolidated was aware of, let alone colluded in, this intent. Plaintiffs do point to evidence that a vice president for Consolidated, Yong, had made statements about certain workers who had exercised their IWCA rights. But plaintiffs fail to relate this evidence in any manner to the challenged mass discharge.

Consequently, the court grants the defendants' motion for reconsideration with regard to all of the plaintiffs' IWCA claims against Consolidated, and grants Consolidated's motion for summary judgment with regard to all these claims.


For the reasons stated above, the court denies the plaintiffs' motion to strike the defendants' motion for reconsideration of its prior order denying defendants' motion for summary judgment. In addition, the court grants in part defendants' motion for reconsideration. Accordingly, the court grants defendant Consolidated's motion for summary judgment as to all plaintiffs under the IWCA. In addition, the court grants defendant NWS' motion for summary judgment as to the claims of plaintiffs Maurice, James, Stephen, Eligah and Edward under the IWCA. However, the court denies NWS' motion for summary judgment as to the IWCA claims of plaintiffs Gerald and Sylvester. In addition, the court further alters its prior order and grants both defendants' summary judgment as to the ADEA claims by plaintiffs Jessie, Maurice, Eligah and Willie. Defendants' motion for summary judgment as to the ADEA claims by the remaining plaintiffs are denied. Defendants' motion to strike plaintiffs' 12(N) response is granted in part and denied in part as provided above.

Also as provided above, defendants' motion in limine to exclude arguments on the meaning of the Teamster Memo is denied without prejudice. With regard to defendants' motion in limine to exclude the expert testimony of Robert Baade, plaintiffs are instructed to supplement its prior submission responding to defendant's motion in limine by identifying and explaining Baade's method of calculating his statistics.

Enter: Blanche M. Manning

United States District Court

Dated: 10/21/97


*fn1 These are statements 1-4, 8, 16-21, 25, 27-29, 39, 40, 45, 54, 55, 58, 61, 83, 96-102, 106, 132, 136 and 144-48.

*fn2 These are statements 36, 37, 44, 92-94, 96, 105, 115 and 139-42.

*fn3 These are statements 23, 26, 52, 56, 69, 70, 78-82, 85-87, 123 and 127-28.

*fn4 These are statements 33, 57, 62-67, 74-82, 85-87, 90-91, 95, 107-08, 110-14, 117, 137, 143 and 150.

*fn5 These are statements 5-7, 9-12, 14-15, 22-23, 26, 30-32, 34-35, 38, 41-44, 46-53, 56-57, 59-60, 62-69, 70-82, 103-07, 109-10, 116, 118-31, 133-35, 138, 142 and 149.

*fn6 Because of duplicated surnames among involved individuals in this case, the order will refer to the plaintiffs by their first names.

*fn7 Plaintiffs deny this allegation with a vague citation to "Yong's Employee List." Because the plaintiffs fail to explain how Yong's attached list undermines this claim, the court deems this fact admitted.

*fn8 Plaintiffs assert that the depositions of Louis, Thomas and Richard corroborate Jessie's story. Louis stated that the door was open to his stall while he gave the sample. Thomas testified that the door may have been slightly ajar. Plaintiffs have not provided the cited pages from Richard's deposition.

*fn9 Defendants also argue that two other roster drivers, Lyewski and plaintiff James, should be excluded because they failed to meet the requirement of availability for work on December 2, 1991. As also explained below, however, the record does raise a genuine dispute whether this requirement is pre-textual. Consequently, these drivers should be included in any analysis.

*fn10 Defendants actually assert there were 86 applicants. However, their figures presumably exclude Lyewski and plaintiff James because they were not available for work. As noted, a genuine dispute exists as to whether this is appropriately considered a requirement for hiring. In addition, defendants presumably identify 3 of the applicants as hired, even though they were subsequently discharged during the probationary figures. As Bridwell made these same discharge decisions on the heels of his hiring decision, it appears proper to count these three applicants as ultimately rejected.

*fn11 For instance, the retention rate for older employees would rise to 84.7%. More importantly, the retention for those under 40 would drop to 86.2%.

*fn12 Although not challenged by the defendants, the court also expresses its concern over the methodology Baade used in calculating his standard deviation figures. Applying commonly used methods to these figures the court reached far less impressive findings of significance. See 45C Am. Jur. 2d SEC. 2815 (1993); Walter B. Connolly, Jr., David W. Peterson & Micheal Connolly, Use of Statistics in Equal Employment Opportunity Litigation, SEC. 4.04[4][a] (1997). Of course, neither precedent nor Daubert necessarily permits only one methodology. For purposes of the summary judgment motion, the court will tentatively presume that Baade is applying the method recognized as best suited to smaller sample sizes, Fisher's exact method. See, e.g., Jones v. Pepsi-Cola Metropolitan Bottling Co., 871 F. Supp. 305, 311 (E.D.Mich. 1994).

*fn13 The court does not propose to have engaged in a complete statistical analysis. However, six of the seventeen employees who tested positive for drugs were 40 or over. From a review of the evidence, some 287 employees took the drug test for NWS of whom around 160 were 40 or over. Thus, a majority of the employees tested were over 40 while a clear minority of those testing positive were over 40.

*fn14 Plaintiffs statistics provide no support for Maurice's claims as they do not relate to the reason for his discharge. See Sample v. Aldi Ind., 61 F.3d 544, 551 (7th Cir. 1995).

*fn15 As with Maurice, plaintiffs' statistics do not save Jessie's claim as they do not arguably account for NWS' proffered explanation.

*fn16 However, in its prior position statement to the EEOC, NWS did note among the reasons for not hiring Stephen was a poor performance evaluation by supervisors.

*fn17 Plaintiffs also generally complain that defendants have altered their alleged basis for not hiring Edward. In their response to earlier interrogatories, while defendants did allude to Edward's alleged argumentative nature, they focused on alleged overtime and attendance problems. However, Plaintiffs do not dispute that defendants had already alluded to Edward's problems with customers as underlying Bridwell's decision not to hire him, and that Bridwell had testified to this fact at deposition.

*fn18 Maurice, James, Stephen, Eligah and Edward were never hired by NWS. However, plaintiffs Gerald and Sylvester were hired and subsequently discharged.

*fn19 Presumably, plaintiffs never pursue this argument because NWS never previously employed them.

*fn20 The court also denies the plaintiffs' motion to strike the defendants' motion for reconsideration.

*fn21 As noted above, because the record fails to raise an issue of pretext, Consolidated's motion for summary judgment is granted with regard to the ADEA claims by Jessie, Maurice, Eligah and Willie.