{ "id": 1096570, "name": "ROBERT M. SOLA, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees", "name_abbreviation": "Sola v. Human Rights Commission", "decision_date": "2000-09-20", "docket_number": "No. 1-98-2665", "first_page": "528", "last_page": "546", "citations": [ { "type": "official", "cite": "316 Ill. App. 3d 528" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "41 F.3d 1073", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7411710 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "1076", "parenthetical": "EEOC" }, { "page": "1077" } ], "opinion_index": 0, "case_paths": [ "/f3d/41/1073-01" ] }, { "cite": "96 F.3d 254", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7649365 ], "year": 1996, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/f3d/96/0254-01" ] }, { "cite": "88 F.3d 506", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9045191 ], "year": 1996, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/f3d/88/0506-01" ] }, { "cite": "507 U.S. 604", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6235233 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "609" }, { "page": "346" }, { "page": "1705" } ], "opinion_index": 0, "case_paths": [ "/us/507/0604-01" ] }, { "cite": "33 F.3d 1308", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10533006 ], "year": 1994, "pin_cites": [ { "page": "1313-14", "parenthetical": "combining two approaches; first step in a claim of disparate treatment based on pretext and supported by circumstantial evidence is to establish a prima facie case and the balance of the McDonnell Douglas method" } ], "opinion_index": 0, "case_paths": [ "/f3d/33/1308-01" ] }, { "cite": "169 F.3d 1068", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11769751 ], "year": 1999, "pin_cites": [ { "page": "1072", "parenthetical": "citing only Troupe test and failing to mention McDonnell Douglas" } ], "opinion_index": 0, "case_paths": [ "/f3d/169/1068-01" ] }, { "cite": "48 F. Supp. 2d 790", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11549882 ], "year": 1999, "pin_cites": [ { "page": "796", "parenthetical": "noting two approaches and stating Troupe part of direct evidence method" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/48/0790-01" ] }, { "cite": "140 F.3d 716", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1318566 ], "year": 1998, "pin_cites": [ { "page": "722-23" } ], "opinion_index": 0, "case_paths": [ "/f3d/140/0716-01" ] }, { "cite": "148 F.3d 658", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 288202 ], "year": 1998, "pin_cites": [ { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/f3d/148/0658-01" ] }, { "cite": "186 F.3d 759", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 857891 ], "year": 1999, "pin_cites": [ { "page": "763" } ], "opinion_index": 0, "case_paths": [ "/f3d/186/0759-01" ] }, { "cite": "219 F.3d 612", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11195778 ], "year": 2000, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/f3d/219/0612-01" ] }, { "cite": "761 F.2d 1210", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 29510 ], "year": 1985, "pin_cites": [ { "page": "1217" } ], "opinion_index": 0, "case_paths": [ "/f2d/761/1210-01" ] }, { "cite": "122 F.3d 374", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 302644 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/f3d/122/0374-01" ] }, { "cite": "662 N.E.2d 1358", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 663", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156803 ], "year": 1996, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0663-01" ] }, { "cite": "96 C 6920", "category": "reporters:state", "reporter": "Cow.", "year": 1998, "opinion_index": 0 }, { "cite": "831 F. Supp. 691", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 571961 ], "year": 1993, "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/f-supp/831/0691-01" ] }, { "cite": "840 F.2d 825", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10547319 ], "year": 1988, "pin_cites": [ { "page": "829", "parenthetical": "comment that the plaintiff \"moved in slow motion\" at most referred to a characteristic sometimes associated with age" } ], "opinion_index": 0, "case_paths": [ "/f2d/840/0825-01" ] }, { "cite": "157 F.3d 520", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11677280 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "526" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/f3d/157/0520-01" ] }, { "cite": "438 U.S. 567", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1769263 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "579" }, { "page": "968-69" }, { "page": "2950-51" } ], "opinion_index": 0, "case_paths": [ "/us/438/0567-01" ] }, { "cite": "64 Def. Couns. J. 88", "category": "journals:journal", "reporter": "Def. Couns. J.", "year": 1997, "pin_cites": [ { "page": "92" } ], "opinion_index": 0 }, { "cite": "720 N.E.2d 343", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "308 Ill. App. 3d 494", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261344 ], "year": 1999, "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0494-01" ] }, { "cite": "43 F.3d 340", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11304689 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "342", "parenthetical": "fact that reduction in force had disparate impact on older employees is not a theory of age discrimination cognizable in the Seventh Circuit" }, { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/f3d/43/0340-01" ] }, { "cite": "154 F.3d 389", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11704269 ], "year": 1998, "pin_cites": [ { "page": "400", "parenthetical": "\"Our court generally has not found that statistical evidence concerning terminated employees, without more, is relevant to our analysis of whether the articulated reasons for discharging this plaintiff were pretextual or discriminatory\" (emphasis in original)" } ], "opinion_index": 0, "case_paths": [ "/f3d/154/0389-01" ] }, { "cite": "168 F.3d 961", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11642514 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "966" }, { "page": "966" } ], "opinion_index": 0, "case_paths": [ "/f3d/168/0961-01" ] }, { "cite": "152 F.3d 666", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11710052 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/f3d/152/0666-01" ] }, { "cite": "113 F.3d 750", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 336273 ], "year": 1997, "pin_cites": [ { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/f3d/113/0750-01" ] }, { "cite": "69 F.3d 1344", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7414067 ], "year": 1995, "pin_cites": [ { "page": "1350" } ], "opinion_index": 0, "case_paths": [ "/f3d/69/1344-01" ] }, { "cite": "20 F.3d 745", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10510747 ], "year": 1994, "pin_cites": [ { "page": "747" } ], "opinion_index": 0, "case_paths": [ "/f3d/20/0745-01" ] }, { "cite": "545 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "450 U.S. 248", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184064 ], "weight": 15, "year": 1981, "pin_cites": [ { "page": "254" }, { "page": "216" }, { "page": "1094" }, { "page": "254" }, { "page": "216" }, { "page": "1094" }, { "page": "255" }, { "page": "216" }, { "page": "1095" }, { "page": "256" }, { "page": "217" }, { "page": "1095" } ], "opinion_index": 0, "case_paths": [ "/us/450/0248-01" ] }, { "cite": "704 N.E.2d 797", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "302 Ill. App. 3d 141", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352940 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0141-01" ] }, { "cite": "20 F.3d 734", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10510656 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "736" }, { "page": "736" }, { "page": "737" } ], "opinion_index": 0, "case_paths": [ "/f3d/20/0734-01" ] }, { "cite": "509 U.S. 502", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 355912 ], "weight": 15, "year": 1993, "pin_cites": [ { "page": "506" }, { "page": "416" }, { "page": "2747" }, { "page": "507-08" }, { "page": "416" }, { "page": "2747" }, { "page": "515" }, { "page": "421" }, { "page": "2751-52" }, { "page": "516" }, { "page": "422" }, { "page": "2752" } ], "opinion_index": 0, "case_paths": [ "/us/509/0502-01" ] }, { "cite": "411 U.S. 792", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10002 ], "weight": 14, "year": 1973, "pin_cites": [ { "parenthetical": "McDonnell Douglas" }, { "parenthetical": "McDonnell Douglas" }, { "parenthetical": "McDonnell Douglas" }, { "page": "802" }, { "page": "677" }, { "page": "1824" }, { "page": "802" }, { "page": "678" }, { "page": "1824" }, { "page": "804" }, { "page": "679" }, { "page": "1825" }, { "page": "679" }, { "page": "1826" } ], "opinion_index": 0, "case_paths": [ "/us/411/0792-01" ] }, { "cite": "554 N.E.2d 155", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "135 Ill. 2d 499", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256350 ], "year": 1990, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0499-01" ] }, { "cite": "632 N.E.2d 1035", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "158 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780281 ], "year": 1994, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0210-01" ] }, { "cite": "659 N.E.2d 961", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "168 Ill. 2d 247", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307266 ], "year": 1995, "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0247-01" ] }, { "cite": "692 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "181 Ill. 2d, 191", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821407 ], "year": 1998, "pin_cites": [ { "page": "204-05" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0191-01" ] }, { "cite": "719 N.E.2d 756", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "188 Ill. 2d 17", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536033 ], "year": 1999, "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0017-01" ] }, { "cite": "620 N.E.2d 1200", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "250 Ill. App. 3d 130", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2920588 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "138" }, { "page": "138" }, { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/250/0130-01" ] }, { "cite": "655 N.E.2d 18", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 769", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291626 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "774-75" }, { "page": "774" }, { "page": "774-75" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0769-01" ] } ], "analysis": { "cardinality": 1594, "char_count": 45471, "ocr_confidence": 0.758, "pagerank": { "raw": 4.5046715916883656e-08, "percentile": 0.28204540110253534 }, "sha256": "e22e1a4d7799facdf7ecea0b59096a85d559b252bcaadf673e297c5f22b03fcc", "simhash": "1:3ae8f386a842b721", "word_count": 7372 }, "last_updated": "2023-07-14T16:10:00.608787+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROBERT M. SOLA, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the opinion of the court:\nPetitioner Robert Sola (Sola) appeals from a summary decision of defendant Illinois Human Rights Commission (the Commission) dismissing his complaint against respondent International Business Machines Corporation (IBM), alleging that IBM discriminated against him on the basis of age when it designated him as \u201csurplus\u201d and permanently laid him off in violation of the Illinois Human Rights Act (the Act) (775 ILCS 5/1 \u2014 102 et seq. (West 1998)). This matter is before this court on direct appeal pursuant to Supreme Court Rule 335 (155 Ill. 2d R. 335) and section 3 \u2014 113 of the Administrative Review Law (735 ILCS 5/3 \u2014 113 (West 1998)). On appeal, Sola contends that the summary decision was improper because the Commission utilized the wrong legal standard in assessing whether he adduced sufficient evidence to create a triable issue of fact, the Commission ignored, minimized, or confused evidence, the Commission erred in holding no case law supported his position that IBM failed to adhere to seniority-based reduction-in-force policies, and the Commission misapplied reduction-in-force case law. For the reasons set forth below, we affirm.\nThe relevant facts in this case are taken from Sola\u2019s affidavit and the affidavits of IBM\u2019s other employees, unless otherwise indicated. We initially note that Sola\u2019s affidavit contains no facts regarding his work history or any activities or events that occurred during his employment with IBM. The affidavit relates only to the various exhibits he offered, which are disjointed, unorganized and, at times, unclear as to their source. Thus, the basic facts of Sola\u2019s employment history and his ultimate resignation are taken mainly from the employee affidavits supplied by IBM, including those of Kimberly Kupczyk, Keith Heideman, and Sharon Whitlock.\nSola first began working for IBM on June 14, 1965, as an associate systems engineer. Thereafter he held a variety of positions, including senior store systems engineer and customer support representative.\nAccording to Heideman, Sola\u2019s second-line manager, in the winter of 1993, IBM established the \u201cArea Configuration Team\u201d (the ACT Team or Team) based on services needed for four business groups: product marketing, software marketing, availability services, and customer service organization. The Team was designed to handle the software and hardware configurations for these four groups. At the time the Team was formed, IBM believed it needed 8 to 12 individuals with skills in large systems (ES/9000), mid-range systems (AS/400), work stations, and networking systems. In early 1994, Sola was recommended for the Team based on his AS/400 skills and administrative experience. Sola was designated a \u201cgeneralist\u201d and became the staff information center analyst on the Team. This was the last position he held with IBM. Whitlock was assigned as the Team leader and was responsible for the day-to-day operational management of the Team. Kupczyk was Sola\u2019s first-line manager and was responsible for personnel issues and his career development. In her role as Team leader, Whitlock reported to Kupczyk frequently on the performance and progress of various Team members. The other Team members were: Steven Fischer, Andrea Adamson, Jeff Laniewski, Margaret Lindenberger, Kevin Mclnerney, Paul Rawlins, and Zoe Miron.\nAll three individuals averred that in the late summer of 1994, IBM determined that the Team\u2019s skills were not in accord with customer demands: 80% of the demand was for large system configurations. At this time, only two Team members possessed large system configuration skills. Thus, management determined that more staff was needed for large systems and less in the other areas. Based on this, it was determined that approximately three Team members had to be eliminated.\nAt about the same time and independent of the above determination, IBM announced its \u201cEmployee Transition Plan\u201d (the IETP), a reduction-in-force plan based on IBM\u2019s need to become more competitive and efficient. The plan would reduce the overall number of employees while retaining the critical skills necessary for IBM to service its customers. An IBM memorandum, dated September 8,1994, stated that IBM would be eliminating 3,000 positions across the country, or 7% of its force. According to the memorandum, a majority of the positions to be eliminated would be support staff. Under the plan, each general manager was required to designate certain employees as \u201csurplus,\u201d based on the manager\u2019s sole discretion. One method of implementation of the plan involved staff reduction. In this respect, management analyzed the various units of the business to see where employees could be eliminated without significantly impacting upon IBM\u2019s service level. Once it was decided how many employees would be laid off in any given unit, managers of that unit identified the skills to fulfill the unit\u2019s mission. Once the skills were identified, each employee in the unit was assessed and those with the weakest skills were designated surplus.\nThe ACT Team was one area targeted by the reduction-in-force plan. According to Kupczyk, IBM assessed the Team\u2019s overall productivity and business needs, and it determined that three members had to be eliminated. Whitlock averred she was responsible for identifying the necessary skills to fulfill the Team\u2019s mission \u2014 those skills critical to the success of the Team. She identified the following skills: AS/400 configuration skills; effective use of hardware/software tools and administrative systems supporting the configuration process; high level of productivity and accuracy; effective multiplexing (handling multiple tasks concurrently); good communication skills; teamwork; customer relation skills; an understanding of the ES (mainframe computer) hardware/software platform; good business judgment; organizational skills; and creativity to improve the configuration process.\nHeideman and Kupczyk met to determine which three members would be eliminated based on a comparative assessment of the skills of each Team member. Each of the seven members was assessed in accordance with the criteria and Sola (56), Fischer (45), and Mclnerney (43) were designated as surplus. Those members who were not surplused were Adamson (36), Laniewski (31), Rawlins (52), and Lindenberger (45) , Sola, Fischer, and Mclnerney were assessed as comparatively weaker than those members who were retained. According to Kupczyk, Sola\u2019s overall productivity was the lowest in the group. As Sola\u2019s day-to-day supervisor, Whitlock agreed with Kupczyk\u2019s and Heideman\u2019s assessment of Sola\u2019s skills as comparatively weaker than those of the rest of the Team in the areas of technical configuration skills, communication skills, and customer relationship skills. Further, his overall productivity was the lowest in the group. All three averred they were unaware of Sola\u2019s age while working with him and that age had nothing to do with the assessment of his skills or designating him as surplus.\nOn September 24, 1994, Kupczyk advised Sola he had been designated as surplus and that he would he permanently laid off as of November 30, 1994. In response to his designation as surplus, Sola retired as of November 30, 1994, five days prior to reaching age 57.\nOn October 3, 1994, Sola filed a charge of discrimination with the Department, alleging he had been discriminated against based on his age. Thereafter, Sola filed a verified complaint with the Department pursuant to the Act. 775 ILCS 5/1 \u2014 102 et seq. (West 1998). Following discovery, IBM filed a motion for summary decision pursuant to the Illinois Administrative Code (the Code) (56 111. Adm. Code \u00a7 5300.735(b) (2000)), alleging that Sola could not demonstrate discrimination because he could not establish a prima facie case, IBM could set forth a legitimate, nondiscriminatory reason for Sola\u2019s lay off, and Sola could not demonstrate that its reason was pretextual. In support of its motion, IBM attached the affidavits of Kupczyk, Heideman, and Whit-lock, discussed above.\nIn response, Sola argued that various memoranda, \u201cemails,\u201d newspaper articles, and other documents precluded summary decision. In support of his response, Sola attached voluminous documents, including the documents identified above, as well as \u201csummaries\u201d of evidence, various IBM documents, and the affidavits of Fang-Pai Chen and Kevin Mclnerney.\nThe administrative law judge (ALJ) subsequently rendered his \u201cRecommended Order and Decision.\u201d He determined that Sola had made a prima facie case of age discrimination and, further, that IBM had set forth a legitimate, nondiscriminatory reason for its decision to surplus Sola, i.e., Sola\u2019s skills were less necessary to the Team than those of the members who were retained. The ALJ concluded, however, that Sola failed to demonstrate a genuine issue of material fact on the question of whether IBM\u2019s articulated reason for designating him as surplus was pretextual and, accordingly, recommended granting IBM\u2019s motion for summary decision. Sola sought review of the ALJ\u2019s decision before the Commission.\nThe Commission adopted and affirmed the ALJ\u2019s decision. The Commission rejected Sola\u2019s argument that the ALJ utilized an improper test in determining whether Sola had demonstrated a genuine issue of material fact, but agreed with the ALJ that Sola had made a prima facie case of age discrimination and that IBM had set forth a legitimate, nondiscriminatory reason for \u201csurplusing\u201d Sola.\nOn appeal, the parties initially disagree on the standard of review. Sola and the Commission contend that the standard is de novo, relying on Tate v. American General Life & Accident Insurance Co., 274 Ill. App. 3d 769, 655 N.E.2d 18 (1995). IBM, on the other hand, contends that the standard of review is against the manifest weight of the evidence pursuant to section 8 \u2014 111(A)(2) of the Act (775 ILCS 5/8\u2014 111(A)(2) (West 1998)), and relies on Cano v. Village of Dolton, 250 Ill. App. 3d 130, 620 N.E.2d 1200 (1993).\nPursuant to the Code, an ALJ shall render summary decisions \u201cwithout delay if the pleadings and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving Party is entitled to a Recommended Order as a matter of law.\u201d 56 Ill. Adm. Code \u00a7 5300.735(b) (2000). This court has previously held that a \u201csummary decision is the administrative agency procedural analogue to the motion for summary judgment in the Code of Civil Procedure.\u201d Cano, 250 Ill. App. 3d at 138. Thus, \u201c[bjecause of the similarities of the two, it would seem appropriate to employ the case law which has grown out of the summary judgment motion practice when reviewing the propriety of such an order on direct review.\u201d Cano, 250 Ill. App. 3d at 138. Although summary judgments are reviewed de novo (Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 30, 719 N.E.2d 756 (1999)), two districts of the appellate court have disagreed on the standard of review for summary decisions.\nIn Cano, the First District held that the standard of review is against the manifest weight of the evidence, pursuant to the dictates of the Act. 775 ILCS 5/8 \u2014 111(A)(2) (West 1998). Section 8 \u2014 111(A)(2) of the Act provides: \u201cIn any proceeding brought for judicial review, the findings of fact made at the administrative level shall be sustained unless the court determines that such findings are contrary to the manifest weight of the evidence.\u201d 775 ILCS 5/8 \u2014 111(A)(2) (West 1998). However, the Third District disagreed with Cano\u2019s holding. In Tate, the Third District held that the proper standard of review is de novo, finding that Cano incorrectly applied the standard of review for factual questions, the manifest weight of the evidence, to legal questions. Tate, 274 Ill. App. 3d at 774-75. According to Tate, summary decision, like summary judgment, \u201crequires [that] a decision be entered in favor of the moving party if there is no genuine issue as to any material fact and if the moving party is entitled to a decision in its favor as a matter of law.\u201d Tate, 274 Ill. App. 3d at 774. Because this is a legal determination, not a factual determination, de novo review applies. Further, the Tate court noted that Cano erroneously relied upon section 8 \u2014 111(A)(2) because that section, too, relates to factual findings of the Commission where a manifest weight of the evidence standard does and should apply. Tate, 274 Ill. App. 3d at 774-75.\nWhile we note that we are not bound by another district\u2019s decision, we find Tate better reasoned and decline to follow Cano. First, Cano conducted no analysis; it merely cited to section 8 \u2014 111 and stated that its review was based upon a manifest weight of the evidence standard. While Cano, 250 Ill. App. 3d at 138, highlighted the term \u201cany,\u201d in \u201cIn any proceeding\u201d in section 8 \u2014 111(A)(2), it ignored the language following this phrase that the Commission\u2019s \u201cfindings of fact\u201d were subject to a manifest weight of the evidence standard of review. 775 ILCS 5/8 \u2014 111(A)(2) (West 1998). Section 8 \u2014 111(A)(2) contains no language about findings of law. Moreover, a grant of summary decision, based on the language utilized in the Code, clearly is not a question of fact. Rather, the Code employs the same language utilized for summary judgment \u2014 \u201cas a matter of law.\u201d Tate, unlike Cano, recognized the difference between questions of law and questions of fact. Thus, Tate was correct in concluding that section 8 \u2014 111(A)(2) was not applicable.\nAdditionally, Sola concedes we have jurisdiction pursuant to the Administrative Review Law (735 ILCS 5/3 \u2014 101 et seq. (West 1998)), specifically section 3 \u2014 113 (735 ILCS 5/3 \u2014 113 (West 1998)). Therefore, all relevant provisions of the Administrative Review Law apply, including section 3 \u2014 110, which provides that the Administrative Review Law \u201cextend[s] to all questions of law and fact\u201d and that the \u201cfindings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.\u201d (Emphasis added.) 735 ILCS 5/3 \u2014 110 (West 1998). On administrative review, questions of fact are reviewed with deference and subject to a manifest weight of the evidence standard. Conversely, on review, questions of law are given no deference and subject to a de novo standard of review. See City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d, 191, 204-05, 692 N.E.2d 295 (1998); Branson v. Department of Revenue, 168 Ill. 2d 247, 254, 659 N.E.2d 961 (1995); Envirite Corp. v Illinois Environmental Protection Agency, 158 Ill. 2d 210, 214, 632 N.E.2d 1035 (1994); City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499, 507, 554 N.E.2d 155 (1990).\nFor the foregoing reasons, we find that the applicable standard of review for summary decision is de novo.\nSola next contends that the ALJ improperly applied the indirect method of proof, set forth in McDonnell Douglas Corp. v Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) (McDonnell Douglas), in assessing his case and concluding he failed to establish a material question of fact as to pretext. Sola argues that this standard is no longer applicable in light of St. Mary\u2019s Honor Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993), and Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994), because plaintiffs can now prove their cases circumstantially, \u201cwithout respect to\u201d the McDonnell Douglas test. He contends the facts of his case more than meet the Troupe standard.\nIBM responds that the McDonnell Douglas test is still viable as confirmed by Illinois J. Livingston Co. v. Human Rights Comm\u2019n, 302 Ill. App. 3d 141, 704 N.E.2d 797 (1998). IBM contends that Hicks did not change a plaintiffs burden. The Commission agrees, arguing that the pertinent analysis is that outlined in McDonnell Douglas and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The Commission further argues that there is nothing in Hicks that states it abandoned the McDonnell Douglas test. Instead, the Commission maintains that the Hicks court added a caveat that even if an employer\u2019s reason is shown to be pretextual, the plaintiff must still demonstrate that the employer\u2019s conduct was a result of unlawful discrimination. The Commission also argues that Troupe merely addressed the type of evidence that may create a triable issue of fact, and not a separate standard of analysis, as Sola argues.\nIntentional discrimination can be shown by one of two methods: (1) direct evidence or (2) indirect evidence (the McDonnell Douglas test). Under the McDonnell Douglas test, as explained by Burdine and Hicks, and as adopted by the Illinois Supreme Court in Zaderaka v. Human Rights Comm\u2019n, 131 ILl. 2d 172, 178-79, 545 N.E.2d 684 (1989), a plaintiff can utilize indirect evidence to sustain his or her case of unlawful discrimination. Under this approach, the plaintiff must first establish by a preponderance of the evidence a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 36 L. Ed. 2d at 677, 93 S. Ct. at 1824. This prima facie case creates a presumption that the employer engaged in unlawful discrimination. Hicks, 509 U.S. at 506, 125 L. Ed. 2d at 416, 113 S. Ct. at 2747, citing Burdine, 450 U.S. at 254, 67 L. Ed. 2d at 216, 101 S. Ct. at 1094. The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason. McDonnell Douglas, 411 U.S. at 802, 36 L. Ed. 2d at 678, 93 S. Ct. at 1824. The employer has only the burden of production, not the burden of persuasion on this element. Burdine, 450 U.S. at 254, 67 L. Ed. 2d at 216, 101 S. Ct. at 1094; Zaderaka, 131 Ill. 2d at 179 (\u201carticulate, not prove\u201d). Once the employer has articulated a legitimate, nondiscriminatory reason for its action, the inference of discrimination disappears (Hicks, 509 U.S. at 507-08, 125 L. Ed. 2d at 416, 113 S. Ct. at 2747), and the plaintiff must establish by a preponderance of the evidence that the employer\u2019s reason was not a true reason but, rather, a pretext. McDonnell Douglas, 411 U.S. at 804, 36 L. Ed. 2d at 679, 93 S. Ct. at 1825. In other words, the plaintiff must show that the proffered reason was a cover-up for a discriminatory reason. McDonnell Douglas, All U.S. at 805, 36 L. Ed. 2d at 679, 93 S. Ct. at 1826. To prove pretext, the plaintiff must show that the employer\u2019s reason was false and that discrimination was the real reason for the action. Hicks, 509 U.S. at 515, 125 L. Ed. 2d at 421, 113 S. Ct. at 2751-52. At this point, a \u201c \u2018 \u201cnew level of specificity\u201d \u2019 \u201d is required. Illinois J. Livingston, 302 Ill. App. 3d at 154, quoting Hicks, 509 U.S. at 516, 125 L. Ed. 2d at 422, 113 S. Ct. at 2752, quoting Burdine, 450 U.S. at 255, 67 L. Ed. 2d at 216, 101 S. Ct. at 1095. The plaintiff must show: (1) the articulated reason has no basis in fact; (2) the articulated reason did not actually motivate the employer\u2019s decision; or (3) the articulated reason was insufficient to motivate the employer\u2019s-decision. Kier v. Commercial Union Insurance Cos., 808 E2d 1254, 1259 (7th Cir. 1987). See Hughes v. Brown, 20 F.3d 745, 747 (7th Cir. 1994).\nIn Troupe, the court set forth what has now apparently become an alternative method of proof in the Seventh Circuit. Under the direct approach, the plaintiff can establish his or her case with either direct or circumstantial evidence. The Seventh Circuit in Troupe stated there were three kinds of circumstantial evidence the plaintiff could utilize to meet his or her burden. Each may be sufficient by itself or used in combination to defeat summary judgment. Troupe, 20 E3d at 736. First, there is evidence of \u201csuspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn.\u201d Troupe, 20 F.3d at 736. Second, there is \u201cevidence, whether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic *** on which an employer is forbidden to base a difference in treatment received systematically better treatment.\u201d Troupe, 20 F.3d at 736. Third, there is \u201cevidence that the plaintiff was qualified for the job in question but passed over in favor of (or replaced by) a person not having the forbidden characteristic and that the employer\u2019s stated reason for the difference in treatment is unworthy of belief, a mere pretext for discrimination.\u201d Troupe, 20 F.3d at 736.\nEither the McDonnell Douglas or Troupe test, or both, may be employed by a particular plaintiff in proving his case. Maldonado, 186 F.3d at 763. Also, under either test, the plaintiff must present sufficient evidence to allow a jury to infer that age was a motivating factor in the employer\u2019s decision. Hennessy v. Pemil Datacomm Networks, Inc., 69 F.3d 1344, 1350 (7th Cir. 1995). Whatever the test, the burden of persuasion always remains on the plaintiff. Burdine, 450 U.S. at 256, 67 L. Ed. 2d at 217, 101 S. Ct. at 1095.\nThus, based on the recent Seventh Circuit decisions, there are two methods to prove discrimination. For purposes of the case at bar, we analyze Sola\u2019s evidence under both tests since he has in fact argued that the Troupe method is applicable.\nTo defeat a summary decision, \u201c[a]ll that is required is evidence from which a rational trier of fact could reasonably infer that the defendant had fired the plaintiff because the latter was a member of a protected class.\u201d Troupe, 20 F.3d at 737. In other words, there must be evidence from which the trier of fact could infer that the reason given by the employer was pretextual. Senner v. Northcentral Technical College, 113 F.3d 750, 755 (7th Cir. 1997).\nSola contends that all three types of circumstantial evidence, under the direct evidence method discussed in Troupe, exist in the instant case, although he does not outline or discuss them separately. He argues that this circumstantial evidence was sufficient to preclude summary decision. Sola further argues that the ALJ and Commission ignored, minimized, or confused the evidence he presented, as discussed more fully below.\nIBM contends that Sola failed to present any admissible evidence to support his arguments and, therefore, failed to show its articulated reason for designating Sola as surplus was unworthy of credence. The Commission contends that Sola failed to prove IBM\u2019s stated reason was not the real reason for his designation as surplus \u2014 something Sola must prove before proving the reason was, in fact, discriminatory. The Commission adopts IBM\u2019s arguments in all other respects.\nSola maintains that systematic disparate treatment and disparate impact evidence may be used to prove pretext. According to Sola, such evidence may be used to show that IBM engaged in systematic age discrimination in the Midwest region and, therefore, to prove that IBM\u2019s reason was in reality discriminatory. Sola argues that the ability to utilize this method of proof was \u201cmissed\u201d by the ALJ and Commission, as well as the fact that the Commission ignored all disparate treatment evidence, including that: as early as 1992 IBM targeted older employees in the Midwest area; the change in severance policy was announced in September 1994 immediately preceding the reduction in force; Chen and Mclnerney submitted evidence that they were forced out due to their age; two other employees, Holland and Kjos, were forced out due to age; when Sola, Chen, Holland, and Kjos were forced out of the retail store unit, younger employees replaced them; Chen stated the same thing was happening to other employees throughout the Midwest region; the three individuals designated surplus from the Team were all 40+ and no one under 40 was designated surplus; Mclnerney noticed that older employers were ranked lower than younger employees; and the company was hiring people at the time of Sola\u2019s designation as surplus, yet it could find no other position for him. Sola also contends that the disparate impact model can be used to undermine an employer\u2019s articulated reason.\nIBM contends that any alleged systematic disparate impact evidence does not aid Sola because such evidence is not probative of age discrimination. IBM urges us to adopt the findings of Blackwell v. Cole Taylor Bank, 152 F.3d 666 (7th Cir. 1998), and EEOC, which rejected the use of such a theory in age discrimination cases.\nDisparate impact evidence is not available as a theory to demonstrate age discrimination in the Seventh Circuit. See Diettrich v. Northwest Airlines, Inc., 168 F.3d 961, 966 (7th Cir. 1999); Blackwell, 152 F.3d at 672. See also Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 400 (7th Cir. 1998) (\u201cOur court generally has not found that statistical evidence concerning terminated employees, without more, is relevant to our analysis of whether the articulated reasons for discharging this plaintiff were pretextual or discriminatory\u201d (emphasis in original)); Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir. 1994) (fact that reduction in force had disparate impact on older employees is not a theory of age discrimination cognizable in the Seventh Circuit). However, even assuming either disparate treatment or disparate impact evidence would be admissible to establish that an employer favored younger employees, which in turn could buttress a plaintiffs claim that his employer\u2019s articulated reason was due to age (Diettrich, 168 F.3d at 966; Gehring, 43 F.3d at 342; EEOC, 41 F.3d at 1078), such evidence does not support Sola because a majority of the evidence which Sola contends was ignored is contained in Chen\u2019s and Mclnerney\u2019s affidavits. Those affidavits alleged that the affiants were the subject of age discrimination and that, over several prior years, the affiants observed IBM targeting and getting rid of \u201csenior (older)\u201d employees. These affidavits were of little value because most of the averments were not factual, nor were they supported by facts; rather, they were conclusory. Moreover, some of the averments were based on hearsay. Therefore, the affidavits did not comply with Supreme Court Rule 191 (145 Ill. 2d R. 191). See also Jones v. Dettro, 308 Ill. App. 3d 494, 499, 720 N.E.2d 343 (1999). In fact, most of the evidence Sola points to is not supported by specific factual averments. Sola\u2019s disparate impact or treatment evidence simply does not give rise to an inference of discrimination.\nSola next contends that the Commission improperly ignored statistical evidence and the opinion of his expert, Dr. David Drehmer. He further contends that the sample size of the evidence was sufficient for the Commission to rely upon in finding age discrimination by IBM. IBM contends that the sample size was too small and that Drehmer himself admitted that the data was insufficient to determine whether IBM engaged in age discrimination.\nThe Commission found that Sola\u2019s own expert stated that the statistical evidence could not be used to justify a finding of discrimination. The Commission also concluded that the statistical evidence was not statistically significant because the sample size was too small.\nStatistical evidence must be relevant and significant. R. Mariani & K. Robertson, Age Discrimination Litigation: RIFs, Statistics and Stray Remarks, 64 Def. Couns. J. 88, 92 (1997). Statistics are relevant if the plaintiff \u201cestablishes a connection between the statistics, the practices of the employer and the employee\u2019s case.\u201d 64 Def. Couns. J. at 92. Statistical evidence is significant if the statistical disparity is \u201clarge enough to give rise to an inference that the employer\u2019s decision was based on *** age\u201d and the sample is large enough to have some predictive value. 64 Def. Couns. J. at 92. Nonetheless, the probative value of statistical evidence in demonstrating discrimination against an individual is low. Bickerstaff, 48 F. Supp. 2d at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567, 579, 57 L. Ed. 2d 957, 968-69, 98 S. Ct. 2943, 2950-51 (1978).\nIn the instant case, Sola\u2019s expert specifically stated:\n\u201c[T]he numerical data [presented in the IETP documents] cannot be used to justify a finding of discrimination or non-discrimination. Without knowing the density of persons at each level, it is impossible to determine whether age is or is not related to the decisions of who to keep or who to terminate. The very minimum data that would be necessary to even begin to explore the question of discrimination would include both the ages and the number of persons in each age group who were terminated and who were retained. Ages alone where there is any overlap in age categories cannot be statistically or substantively determinative of age-related practices.\u201d\nDrehmer then gave a lengthy explanation of the data necessary to render such a determination and the methods to utilize in evaluating it. Clearly, Drehmer did not have sufficient information to render a statistical opinion. If an \u201cexpert\u201d does not have sufficient data, the statistics cannot be significant because one cannot ascertain the statistical disparity percentage which is necessary to ascertain whether an inference of discrimination exists. Moreover, if Drehmer did not have sufficient data to rely upon and base a decision upon, how could the Commission, which presumably is not an expert in statistical correlation, have sufficient data upon which to rely? The data offered by Sola simply did not meet the requirements for relevancy and significance.\nSola next contends that the Commission ignored \u201cabundant\u201d evidence of ageist stereotypes by the decision makers, Heideman, Whitlock, and Kupczyk. Sola directs our attention to specific comments made by these individuals. According to Sola, Whitlock said he was \u201cslow\u201d and that he \u201cneeded training and doubted he could learn new skills quickly.\u201d Additionally, Kupczyk made a comment that Sola believed his position in the ACT Team was temporary until his retirement. She also commented that Sola was slow. According to Sola, these comments demonstrate ageist stereotypes showing that these individuals believed him to be nonproductive (slow), more costly and inflexible (needed training but not able to learn), and looking toward retirement \u2014 all common age stereotypes. IBM contends that none of the statements relied upon by Sola are probative of age discrimination.\n\u201c[T]o have probative value, remarks must be \u2018age-related\u2019 and \u2018relevant.\u2019 \u201d 64 Def. Couns. J. at 94. The comments must have been made contemporaneously with the employer\u2019s decision or be causally related to the decision. Marshall v. American Hospital Ass\u2019n, 157 F.3d 520, 526 (7th Cir. 1998). Ambiguous comments refer to \u201cisolated comments\u201d that may support an inference of discrimination even though the statements are not directly discriminatory themselves. Bickerstaff, 48 F. Supp. 2d at 797. Stray remarks, \u201cincluding isolated statements, statements by non-decision makers, or statements by decision makers unrelated to the decisional process itself, are insufficient to establish discrimination.\u201d 64 Def. Couns. J. at 94. Vague or ambiguous comments do not give rise to an inference of discrimination. 64 Def. Couns. J. at 94.\nThe Commission determined the remarks relied upon by Sola were not \u201cnecessarily age based remarks.\u201d We agree. None of the comments identified by Sola mention or refer to age. Simply referring to someone as slow in performing his or her work does not equate to discrimination based on age. See Young v. General Foods Corp., 840 F.2d 825, 829 (11th Cir. 1988) (comment that the plaintiff \u201cmoved in slow motion\u201d at most referred to a characteristic sometimes associated with age). There is no evidence that Whitlock or Kupczyk ever referred to Sola\u2019s age or stated he was old. This case is distinguishable from Holmes v. Marriott Corp., 831 F. Supp. 691, 707 (S.D. Iowa 1993), where the management commented that the plaintiff was \u201ctoo old to do the job\u201d and was \u201cnot as young as he used to be,\u201d which comments were found to create an inference of age discrimination. Similarly, the fact that Sola required additional training and did not have the skills to learn the requisite knowledge in the time period necessary does not demonstrate age discrimination. Again, there was no reference to Sola\u2019s age or that he was old.\nMoreover, Sola failed to identify any time frame in which the comments were made. There is no evidence whether they were made in the spring, summer, or fall of 1994. Thus, it cannot be inferred that the comments were made contemporaneously with the decision to surplus him. Further, there is no evidence to tie any of these comments to IBM\u2019s decision to designate Sola as surplus. See Jones v. City of Elgin, No. 96 C 6920, (N.D. Ill. May 13, 1998). Therefore, it cannot be inferred that a causal relationship existed between the comments and IBM\u2019s decision.\nIn summary, we find that the comments identified by Sola were stray remarks that he failed to connect to age discrimination or IBM\u2019s decision to \u201csurplus\u201d employees, in particular, himself.\nSola also contends that there was abundant evidence which the Commission ignored, casting doubt on IBM\u2019s articulated reason based on the lack of credibility of IBM\u2019s witnesses and the discrepancies in its evidence. He relies on the following evidence: the managers did not base the reduction in force choice on the IETP stated seniority factor; at the time Sola was designated as surplus, the Team was hiring younger employees but IBM could find no other position for him; Sola completed 66 large system configurations over six months but IBM stated he needed training to perform such work; when Sola was placed in the unit, a manager was excited to have him because of his knowledge and experience; the managers acknowledged the Team as the best and brightest; Sola was given no formal performance appraisal and, therefore, his exceptional performance could not be fully documented; Sola performed above average; Sola received compliments from his managers who were at the same time ridiculing him to others; the growth and revenue of the Team exceeded that of the company; older employees on the Team were given time-consuming projects that decreased their productivity; Whitlock admitted she targeted Mclnerney for termination by giving him the log work; IBM had no white collar employees over the age of 62; Sola was the oldest member of the Team; the managers made the Team believe it was not part of the reduction in force; IBM claimed Sola was not part of the reduction in force, yet gave him information and documents related thereto; Sola was told to take vacation time during the period in which the managers were evaluating the Team; and when Sola was placed on the Team, Whitlock told Mclnerney that Sola was a \u201cshort term problem.\u201d According to Sola, the ALJ clearly made credibility determinations and did not view the evidence in a light most favorable to him, and the ALJ broke the evidence into small pieces rather than viewing it as a whole.\nIBM argues that Sola\u2019s self-perception of his abilities and qualifications was insufficient to support a finding of a pretextual reason. IBM further argues that Sola\u2019s expertise was based on outdated technology that was not pertinent to the Team\u2019s missions. IBM also maintains that the fact Sola received compliments on his work had no impact upon the fact that he was assessed based on his comparative skills. IBM further argues that the fact it believed Sola was doing an adequate job does not equate to a pretextual reason for designating him surplus.\nA majority of the evidence relied upon by Sola in support of his argument is irrelevant to the reduction in force and IBM\u2019s decision to surplus Sola. While Sola argues there is a dispute as to whether he was \u201cterminated\u201d due to the reduction in force, it is clear from the record that because he was surplused, which was the term utilized in the plan, he was part of the reduction in force and this was the basis for his eventual retirement and leaving the company. In any event, the evidence showed that Sola was designated surplus based on his skills as compared to other members of the unit; the evidence showed that Sola\u2019s skills were among the weakest of all the Team members. Therefore, the facts that Sola may have completed large system configurations, managers praised him, he was given no formal performance review, he believed he performed above average, he was assigned log work, and he took vacation time are not pertinent to his claim. Similarly, while the \u201cIETP: Notice to Employees, Age and Title Information\u201d document included seniority as a factor in determining which employees would be designated surplus (i.e., \u201ctotal assessment of such factors as skill needed for IBM\u2019s current and changing environment, performance, seniority, and the elimination of work and positions\u201d), the original document dated September 8, 1994, detailing the reduction in force stated that the decision was within the manager\u2019s discretion based on the \u201cskills necessary for that particular unit.\u201d (Emphasis added.) The document relied upon by Sola was created after the decisions for the entire company had been made, not prior to any decisions. Those individuals with the weakest comparative skills were to be designated surplus. This is precisely what happened to Sola.\nAdditionally, while it may be true that the Team was growing and was unable to complete its work, IBM nonetheless targeted it for reduction. This was IBM\u2019s decision and it is not for this court to substitute our business judgment for IBM\u2019s. Spillyards v. Abboud, 278 Ill. App. 3d 663, 681, 662 N.E.2d 1358 (1996). Moreover, Sola failed to present any evidence that the reduction in force was instituted because of age. Conversely, the Team was targeted for reduction because it had too many employees with skills that were not consistent with those necessary for the unit\u2019s work, e.g., large system configuration. Lastly, contrary to Sola\u2019s contention, there was no evidence that the Team was hiring individuals at the time he was designated surplus.\nIn conclusion, the circumstantial evidence here, pursuant to Troupe, which was admissible and relevant, taken as a whole, was insufficient to give rise to an inference of age discrimination. The evidence simply did not show that IBM\u2019s articulated reason had no basis in fact, did not actually motivate IBM\u2019s decision, or was insufficient to motivate IBM\u2019s decision. Thus, the evidence did not demonstrate a pretext for age discrimination.\nWith respect to proving age discrimination based on indirect evidence, Sola was required to meet the three-prong test of McDonnell Douglas. Neither IBM nor the Commission disputes the ALJ\u2019s finding that Sola established a prima facie case of age discrimination. Therefore, we need not address this issue. Further, IBM articulated a legitimate, nondiscriminatory reason for designating Sola surplus: his assessed skills were comparatively among the weakest of the Team. Therefore, the only element at issue is whether Sola presented sufficient evidence to create a triable issue of fact on the question of pretext. As indicated in footnote 3 of this opinion, the analysis and standards are the same for McDonnell Douglas as for the third type of circumstantial evidence under the Troupe test, which were addressed cumulatively above. Because we concluded that Sola\u2019s circumstantial evidence, taken as a whole, was insufficient to create a question of fact regarding pretext for age discrimination, we also conclude that Sola failed to meet the third prong of McDonnell Douglas.\nAccordingly, based on either the direct or indirect evidence method, summary decision was properly entered dismissing Sola\u2019s complaint based on Sola\u2019s failure to present evidence from which an inference could be drawn that IBM\u2019s articulated reason was a pretext for age discrimination.\nSola next contends that the ALJ erred in holding that no case law supported his position that IBM\u2019s failure to adhere to a seniority-based reduction in force was evidence of a pretextual reason. Sola maintains that he was the most senior member of the Team, but there is no evidence that IBM considered this. According to Sola, IBM stated in the IETP that it was to consider seniority in the surplusing decision. Sola relies on Huff v. UARCO, Inc., 122 F.3d 374 (7th Cir. 1997), in support of his argument. IBM contends that its decision to not base the reduction in force on seniority was not evidence of a pretextual reason because IBM was not required to base such a decision on seniority.\nHuff does not support Sola\u2019s argument. In Huff, the company manual mandated that all reductions in force be based on seniority with bumping rights. In the instant case, there clearly were no bumping rights. Also, as discussed above, seniority was mentioned after the decisions of which employees were to be surplused had been made. The law is clear that employers, are not required to, nor need they, consider seniority in making employment decisions, including reductions in force. Coleman v. Navistar International Transportation Corp., No. 93 647 (N.D. Ill. July 26, 1996). See also Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1217 (7th Cir. 1985).\nFinally, Sola contends that the Commission misapplied reduction-in-force case law. According to Sola, even if he was released due to a reduction in force, which he contends was disputed, an employer, here IBM, can be challenged on its failure to consider an employee, here Sola, for other positions.\nAgain, the law is clear that employers need not transfer employees to another position or find them another job in a reduction of force situation. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 615 (7th Cir. 2000). Thus, this argument fails.\nFor the reasons stated, we affirm the decision of the Commission.\nAffirmed.\nCERDA and WOLFSON, JJ, concur.\nAlthough Sola uses the term \u201ctermination\u201d in his brief, the record demonstrates that he in fact retired following his designation as surplus.\nMiron had left the company in June. Also, apparently, Whitlock was not assessed because she was the Team leader.\nAlthough the issue is somewhat muddled, most recent Seventh Circuit decisions have indicated that the circumstantial evidence analysis espoused in Troupe is one method of proof under the direct evidence method. See Maldonado v. United States Bank, 186 F.3d 759, 763 (7th Cir. 1999); Marshall v. American Hospital Ass\u2019n, 157 F.3d 520, 525 (7th Cir. 1998); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998); Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 722-23 (7th Cir. 1998). See also Bickerstaff v. Nordstrom, Inc., 48 F. Supp. 2d 790, 796 (N.D. Ill. 1999) (noting two approaches and stating Troupe part of direct evidence method). But see Robin v. ESPO Engineering Corp., 200 E3d 1081, 1090 (7th Cir. 2000) (identifying direct and indirect evidence and indicating Troupe falls within indirect at which time it is best to utilize McDonnell Douglas test); Council 31, American Federation of State, County & Municipal Employees v. Doherty, 169 F.3d 1068, 1072 (7th Cir. 1999) (citing only Troupe test and failing to mention McDonnell Douglas). Confusion exists because the third Troupe category is substantially the same as that evidence required by McDonnell Douglas. Marshall, 157 F.3d at 525 n.l; Huff v. UARCO Inc., 122 F.3d 374, 380 (7th Cir. 1997).\nOf the other federal circuits to mention Troupe, only one has analyzed the case in this regard. See Armstrong v. Flowers Hospital, 33 F.3d 1308, 1313-14 (11th Cir. 1994) (combining two approaches; first step in a claim of disparate treatment based on pretext and supported by circumstantial evidence is to establish a prima facie case and the balance of the McDonnell Douglas method).\nSystematic disparate treatment occurs when an employer \u201csimply treats some people less favorably than others\u201d because of age. Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 123 L. Ed. 2d 338, 346, 113 S. Ct. 1701, 1705 (1993).\nSystematic disparate impact evidence exists when \u201ca specified employment practice, although neutral on its face, has a disproportionally negative effect on members of a legally protected class.\u201d Vitug v. Multistate Tax Comm\u2019n, 88 F.3d 506, 513 (7th Cir. 1996). See also Noreuil v. Peabody Coal Co., 96 F.3d 254, 259 (7th Cir. 1996). However, \u201cif [a] practice is found to be justified by business necessity, the [age discrimination] claim will fail.\u201d Equal Employment Opportunity Comm\u2019n v. Francis W Parker School, 41 F.3d 1073, 1076 (7th Cir. 1994) (EEOC). Decisions based on criteria that tend to affect older workers more are not prohibited. EEOC, 41 F.3d at 1077.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Arnold & Kadjan, of Chicago (L. Steven Platt, of counsel), for appellant.", "James E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Karen J. Dimond, Assistant Attorney General, of counsel), for appellees Human Rights Commission and Department of Human Rights.", "Wildman, Harrold, Allen & Dixon, of Chicago (Fredrick H. Bates, of counsel), for appellee International Business Machines Corp." ], "corrections": "", "head_matter": "ROBERT M. SOLA, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.\nFirst District (3rd Division)\nNo. 1-98-2665\nOpinion filed September 20, 2000.\nArnold & Kadjan, of Chicago (L. Steven Platt, of counsel), for appellant.\nJames E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Karen J. Dimond, Assistant Attorney General, of counsel), for appellees Human Rights Commission and Department of Human Rights.\nWildman, Harrold, Allen & Dixon, of Chicago (Fredrick H. Bates, of counsel), for appellee International Business Machines Corp." }, "file_name": "0528-01", "first_page_order": 548, "last_page_order": 566 }