Widmar v. Sun Chemical Corporation et al
Filing
201
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 5/15/2013: Case TerminatedMailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GEORGE WIDMAR,
Plaintiff,
v.
Case No. 11 C 1818
SUN CHEMICAL CORPORATION, a
Corporation; PETER KLUG, an
Individual; CHARLES RAMSEY, an
Individual; and THEODORE KNOTT,
an Individual,
Hon. Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants Sun Chemical Corporation, Peter
Klug, Charles Ramsey, and Theodore Knott’s Motion for Summary for
Judgment.
For the reasons stated herein, the Court grants the
motion.
I.
BACKGROUND
In 1993, Rycoline Products, Inc. (“Rycoline”) hired Plaintiff
George Widmar (hereinafter, the “Plaintiff” or “Widmar”) as a Plant
Manager in Chicago.
In 2004, Defendant Sun Chemical Corporation,
(“Sun Chemical”) acquired Rycoline. Both companies manufacture and
sell pigments, inks, coatings, and other products for the printing
industry.
Widmar was a Plant Manager for Rycoline and Sun Chemical until
his termination in November 2009.
While employed, Widmar was
responsible for “[m]anaging all activities related to manufacturing
at [the Chicago and Adelanto Rycoline plants]” and was involved in
various attempts to remedy product quality issues.
Pl.’s Resp. to
Defs.’ Rule 56.1(a)(3) Statement of Material Fact at 6-8.
At all
times relevant to this dispute, Widmar was more than 40 years old.
In late 2008, Keith Roberts (“Roberts”) became responsible for
Rycoline manufacturing, and became Widmar’s supervisor.
this
time,
Sun
Chemical
was
receiving
a
number
complaints about the quality of its products.
of
Around
customer
Due to the large
number of complaints, Roberts sought the assistance of Widmar to
work
“proactively
with
sales,
purchasing,
and
the
efficiently solve the 2009 product quality issues.”
lab
to
Id. at 9-10.
Apparently, Widmar’s efforts during this time were not up to
par,
as
Widmar
repeatedly
in
admits
September
his
work
and
performance
October
2009.
was
criticized
Such
criticisms
continued in November 2009 after Widmar failed to quarantine a
product contrary to instructions, and failed to mix some of the
Rycoline products properly.
Notably, there was an incident in
November 2009 where Roberts learned that Widmar was directing
employees to mix one of the Rycoline products by “agitating it with
a
forklift,”
instructions.
a
procedure
contrary
to
the
product’s
mixing
Defs.’ Mem. in Supp. of Summ. J. at 9.
After learning this, Roberts grew upset and instructed Widmar
to conduct a “complete review of all materials and [draft] a proper
list of required procedures . . . for each [product].”
Ex. 51, ECF No. 194-5, Page ID# 8798.
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Defs.’
After the review was
completed, Roberts learned that there were other products, in
addition to the one previously mentioned, that were not being mixed
properly under Widmar’s supervision.
Also
around
this
time,
communicating effectively.
Roberts
believed
Widmar
was
not
Specifically, Roberts was disappointed
when he learned Widmar implemented a change in Sun Chemical’s
electronic inventory system and failed to notify all employees of
the change.
On
November
18,
2009,
Roberts
terminated
Widmar
for
performance issues relating to the quality of the products being
manufactured under Widmar’s supervision. At the discharge meeting,
Widmar was informed he would not receive a severance because his
termination was performance related.
On
May
17,
2010,
Widmar
filed
a
charge
with
the
Equal
Employment Opportunity Commission, (the “EEOC”) alleging that his
termination was the result of age discrimination.
After he filed
this charge, Widmar claims an individual informed him that Sun
Chemical
employees
were
accusing
him
of
sabotaging
Rycoline
products intentionally. Widmar considered such comments defamatory
and on February 8, 2011, filed another charge with the EEOC
alleging retaliation and age discrimination.
Widmar filed his Complaint in this Court on March 15, 2011.
The counts that remain include (1) an age discrimination claim
against Sun Chemical in violation of 29 U.S.C. § 621; (2) a
retaliation claim against Sun Chemical in violation of 29 U.S.C.
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§ 621; and (3) a state law defamation claim against Sun Chemical,
Defendant Theodore Knott and Defendant Charles Ramsey, two Sun
Chemical employees, (hereinafter, collectively, the “Defendants”).
Defendants have moved for summary judgment on all counts.
II.
LEGAL STANDARD
Summary judgment is appropriate if the moving party “shows
that there is no genuine dispute as to any material fact and [it]
is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A dispute is “genuine” if the evidence would permit a reasonable
jury to find for the non-moving party.
Inc., 477 U.S. 242, 248 (1986).
affect the outcome of the case.
Anderson v. Liberty Lobby,
A dispute is material if it could
Id.
If the moving party satisfies
its burden, the non-movant must present facts to show a genuine
dispute exists to avoid summary judgment.
See Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986). To establish a genuine issue
of fact, the non-moving party “must do more than show that there is
some metaphysical doubt as the material facts.” Sarver v. Experian
Info. Sys., 390 F.3d 969, 970 (7th Cir. 2004).
III.
A.
DISCUSSION
Age Discrimination
Widmar alleges Sun Chemical discriminated against him in
violation of the Age Discrimination in Employment Act (the “ADEA”),
29 U.S.C. § 621.
Sun Chemical argues it is entitled to summary
judgment because Widmar cannot establish a prima facie case.
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The ADEA makes it unlawful for an employer to “discharge . . .
or otherwise discriminate against any individual . . . because of
such individual’s age.”
29 U.S.C. § 623(a).
To sustain a claim
under the ADEA, a plaintiff must prove that age was a determining
factor in the employer’s decision to fire him.
McCoy v. WGN Cont’l
Broad. Co., 957 F.2d 368, 371 (7th Cir. 1992).
While age does not
need to be the sole reason motivating an employer’s decision to
terminate, a plaintiff must establish that he would not have been
fired but for the employer’s intent to discriminate on the basis of
age.
Id.
A plaintiff may prove age discrimination using either
the “direct method” or the “indirect method.”
See, e.g., Cerutti
v. BASF Corp., 349 F.3d 1055, 1060–61 (7th Cir. 2003).
1.
Direct Method
Under the direct method, a plaintiff must present direct or
circumstantial evidence that establishes age was a determining
factor in the employer’s decision to terminate the plaintiff.
McCoy, 957, F.2d at 371. Such evidence could include admissions or
near-admissions by the employer that its termination decision was
based on plaintiff’s age.
See Lindsey v. Walgreen Co., 08 C 3547,
2009 WL 4730953 at *3 (N.D. Ill. Dec. 8, 2009) (explaining that an
example of direct proof could be a statement from an employer such
as “[y]ou’re too old to work here.”).
Widmar fails to present any direct evidence which suggests his
termination was motivated because of his age.
Instead, he argues
that he can proceed under the direct method through the use of
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“ordinary or mosaic circumstantial evidence.”
to Defs.’ Mot. for Summ. J. at 11.
Pl.’s Mem. in Opp.
There are three categories of
circumstantial evidence that a plaintiff may rely upon to make such
a showing:
(1)
suspicious timing, ambiguous oral or
written
statements, or behavior toward or
comments directed at other employees in the
protected group; (2) evidence, whether or not
rigorously
statistical,
that
similarly
situated employees outside the protected class
received systematically better treatment; and
(3) evidence that the employee was qualified
for the job in question but was passed over in
favor of a person outside the protected class
and the employer’‘s reason is a pretext for
discrimination.
Sun v. Bd. of Trustees, 473 F.3d 799, 812 (7th Cir. 2007).
The Court finds the circumstantial evidence Widmar relies upon
insufficient
to
establish
a
“convincing
mosaic”
that
infers
intentional discrimination. See Cerutti, 349 F.3d at 1061 (holding
that plaintiffs must present circumstantial evidence that “point[s]
directly to a discriminatory reason for the employer’s action”).
First, Widmar claims he was falsely accused of many problems
that
related
discrimination.
to
his
competency
and
this
is
evidence
of
As support for the alleged falsity, he relies on
his own declaration and deposition.
Such evidence is not only
self-serving, but also irrelevant in establishing that age was a
motivating factor in his termination.
See, generally, Anderson v.
Liberty Lobby, 477 U.S. 242, 257 (1986) (stating that a party “must
present
affirmative
evidence
in
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order
to
defeat
a
properly
supported motion for summary judgment.”); see also, Mills v. First
Fed. Sav. & Loan Assoc. of Belvidere, 83 F.3d 833, 843 (7th Cir.
1999) (a
party
opposing
summary
judgment
“must
do
more
than
challenge the judgment of his superiors through his own selfinterested assertions”).
Indeed, the only affirmative evidence Widmar presents to
demonstrate that product performance problems were not his fault
are a handful of emails exchanged between various employees of Sun
Chemical that indicate that one of the issues Sun Chemical was
having with one of its products was the result of its purchasing
department buying the wrong item to test the product.
Ex. A, Group 1.
See Pl.’s
Widmar contends that because the wrong tester was
being used the results indicated that there were quality problems,
when in fact there were none.
Defendants do not dispute that this information was brought to
Roberts’ attention prior to Widmar’s termination. See Defs.’ Resp.
to Pl.’s Second L.R. 56.1 Statement of Additional Fact at 5.
However, Defendants list a number of other quality problems for
which Widmar was responsible that were unrelated to the one Widmar
references.
Notably, one of the other product problems related to
one of Sun Chemical’s “best-selling fountain solutions,” the Print
Easy 4600 and the Advanced Edition 30B. Pl.’s Resp. to Def.’s
L.R. 56.1(a)(3) Statements ¶¶ 20-21, ECF No. 192, Page ID# 8250.
Widmar admits that problems with these products were estimated to
have cost Sun Chemical four million dollars in lost sales and
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admits that he was a member of the Rycoline Leadership Team that
was
responsible
issues.”
for
“identifying
and
solving
product
quality
Id. at ¶¶ 21-24, ECF No. 192, Page ID# 8250-8251.
Thus,
the Court does not find Widmar’s evidence that he was blamed
unfairly
for
Sun
Chemical’s
product
problems
convincing
to
establish a “convincing mosaic of intentional discrimination.”
Cerutti, 349 F.3d at 1061; see also, Schultz v. General Elec.
Capital Corp., 37 F.3d 329, 334 (7th Cir. 1994) (affirming summary
judgment
to
the
employer
where
the
plaintiff
claimed
“any
performance problems were not his fault.”).
The next piece of evidence Widmar presents is the testimony of
Michael Kraus (“Kraus”), one of Sun Chemical’s Human Resources
Managers.
Widmar claims Kraus’ testimony that it was “odd” that a
sixteen-year employee with no prior complaints was being terminated
for performance reasons is evidence of intentional discrimination.
Pl.’s Ex. C at 58, ECF No. 193-3, Page ID# 8337.
However, after reviewing the entirety of Kraus’ testimony, the
Court
does
not
find
it
intentional discrimination.
establishes
a
convincing
Kraus testified:
I asked [Roberts] what were some of the
reasons [for Widmar’s performance problems]
and he elaborated on various reasons.
It
included — there were batches being made that
required premix and George [Widmar] was
unaware that a premix was necessary for those
batches.
There were batches that were
manufactured at Adelanto, California, which
George [Widmar] had responsibility for, that
were manufactured on spec, but the same
material manufactured at Chicago, was not on
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mosaic
of
spec. George [Widmar] had ordered some filter
size changes without advising. SAP, which is
our computer software, the program just wanted
to make a change, advised George [Widmar],
made the change, but George [Widmar] had not
advised anyone else, so others had difficulty
accessing information. There was a batch that
– a temper product that’s manufactured in
Chicago that George [Widmar] had mixed by
having the production operators drive it
around on a forklift, while in Adelanto it was
mixed via a mixer . . . Those are the items I
recall.
Id. at 54-55, ECF No. 193-3, Page ID# 8336.
Kraus also testified that Sun Chemical’s Vice President of
Sales, Mr. Mark DeSandre, concurred with Roberts, and stated that
Roberts produced email communications to support his allegations.
Id. at 55-56.
Accordingly, the Court does not find Kraus’ stray
remark that Widmar’s situation was “odd” points to a discriminatory
reason for Widmar’s termination. See Markel v. Board of Regents of
the
Univ.
of
Wis.
Sys.,
276
F.3d
906,
910
(7th
Cir.
2002)
(statements which require inference of discriminatory animus are
insufficient
to
demonstrate
direct
discrimination);
see
also,
Merillat v. Metal Spinners, Inc., 470 F.3d 685, 694 (7th Cir. 2006)
(“isolated comments that are no more than stray remarks in the
workplace are insufficient to establish that a particular decision
was motivated by discriminatory animus”).
The most persuasive evidence Widmar presents is his denial of
severance pay.
In response to this evidence, Sun Chemical avers
that it does not have a formal or written severance pay policy, but
that “as a matter of practice it usually provides severance pay in
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exchange for a general release of claims only to employees who are
involuntarily terminated for reasons unrelated to performance.”
Pl.’s Resp. to Def.’s L.R. 56.1(a)(3) Statements of Fact at 23.
Sun Chemical explains that Widmar did not receive severance pay
because he was terminated for performance reasons.
Widmar disputes that Sun Chemical does not have a formal
policy with respect to severance pay.
Yet, as support he cites
email communications which affirm Sun Chemical’s position that it
only provides severance to employees who are terminated for reasons
other than performance.
See Pl.’s Ex. K, Group 8 (an email to a
former employee who was terminated due to a reduction in staff,
outlining the employee’s severance package and stating that the
employee’s
effect.).
“Agreement
Because
of
Concerning
this,
Confidentiality”
the
Court
finds
remained
Sun
in
Chemical’s
statement regarding its unwritten, informal policy on severance pay
undisputed.
See Ford v. Lumbermens Mut. Cas. Co., 197 F.R.D. 365,
365 (N.D. Ill. 2000) (stating that Local Rule 56.1 requires parties
to point to specific undisputed record evidence which supports
their positions to assist the Court in finding areas of dispute).
Moreover, Widmar admits that from 2007 to 2010, fifteen
employees were terminated for unsatisfactory performance and only
four were paid severance, while the other eleven did not.
Widmar
does not dispute that three of four who were paid severance were
employees over the age of 40, and that all four employees did not
report to Roberts.
See Pl.’s Resp. to Defs.’ L.R. 56.1 Statement
- 10 -
of Material Fact at 24.
In light of these admissions, the Court
does not find this evidence constitutes evidence of similarly
situated
employees
systematically
intent.
outside
the
better treatment
or
protected
evidence
class
of
receiving
discriminatory
See Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-618
(stating that a coworker is similarly situated if he or she is
directly
comparable
to
plaintiff
in
all
material
respects,
including whether the employees “dealt with the same supervisor.”).
In addition to this, the Supreme Court has held that a
plaintiff who proceeds under the ADEA claiming discrimination with
respect
to
compensation,
terms,
benefits
or
privileges
of
employment must prove that “age actually motivated the employer’s
decision.”
Kentucky Retirement Systems v. E.E.O.C., 554 U.S. 135,
135-36 (2005) (emphasis in original).
The Court reasoned that
while salaries, pensions and other benefits are usually dependent
on an employee’s age or years of service, the two concepts are
“analytically distinct.”
Id.
The Court here does not find Widmar
has established that Sun Chemical denied him severance pay because
of his age.
Thus, the Court does not find Widmar’s circumstantial evidence
illustrates a convincing mosaic of intentional discrimination.
Therefore, in order to avoid summary judgment, he must proceed
under the indirect method.
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2.
Indirect Method
Under the indirect, burden-shifting method originally set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a
plaintiff must first establish a prima facie case of discrimination
to proceed.
After a plaintiff makes this showing, the employer
must then produce a legitimate, nondiscriminatory reason for the
adverse employment action to avoid liability.
Peele v. Country
Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002).
Assuming an
employer offers a nondiscriminatory reason for the adverse action,
the burden shifts back to the plaintiff to demonstrate that the
employer’s
stated
reasons
are
merely
pretextual.
Burks
v.
Wisconsin Dep’t of Transp., 464 F.3d 744, 750-51 (7th Cir. 2006).
A prima facie case under the ADEA is established by showing
that the plaintiff (1) is a member of the protected class (age 40
to 70); (2) was performing his job sufficiently to meet his
employer’s
legitimate
expectations;
(3)
suffered
an
adverse
employment action; and (4) had similarly situated employees outside
of the protected class receive more favorable treatment than he
did.
Everroad v. Scott Truck Sys., 604 F.3d 471, 477 (7th Cir.
2010).
In this case, it is undisputed that Plaintiff was more than 40
years old when he was terminated.
Additionally, there is no doubt
Widmar suffered an adverse employment action when Sun Chemical
terminated his employment on November 18, 2009.
remaining
elements
Widmar
must
establish
- 12 -
Accordingly, the
are
that
his
job
performance met Sun Chemicals legitimate expectations and that
similarly situated employees under the age of 40 received more
favorable treatment than he did.
Sun Chemical argues Widmar has failed to establish these
elements. Widmar disagrees. He claims he has presented sufficient
evidence to demonstrate both elements and also argues that his
circumstances require a different analysis under McDonnell Douglas.
Specifically, Widmar contends he has propounded sufficient evidence
to raise an inference that Sun Chemical applied its legitimate
expectations in a disparate manner.
As such, he argues that the
Court should merge the second and fourth prongs of the McDonnell
Douglas analysis and allow him “to stave off summary judgment . . .
and proceed to the pretext inquiry.”
Id. at 19 (citing Elkhatib v.
Dunkin Donuts, Inc., 493 F.3d 827, 831 (7th Cir. 2007)).
While the
Court is not entirely convinced Widmar has presented sufficient
evidence to raise such an inference, it gives him the benefit of
the doubt and proceeds to the pretext inquiry.
“Pretext is more than a mistake on the part of the employer;
it is a phony excuse.”
Hudson v. Chi. Transit Auth., 375 F.3d 552,
561 (7th Cir. 2004).
To establish pretext at summary judgment,
“non-movants must produce evidence from which a rational factfinder
could infer that the company lied about its proffered reasons for
discharge.”
Schultz v. General Elec. Capital Corp., 37 F.3d 329,
334 (7th Cir. 1994).
“In assessing whether the employer’s stated
reasons for an employment action are pretextual, the inquiry should
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focus
on
whether
the
decisionmaker
honestly
believed
that
terminating the plaintiff was the appropriate decision at time the
decision was made.”
Pinkert v. Journal Sentinel, Inc., No. 11-C-
392, 2012 WL 3113173 at *5 (E.D. Wis. July 31, 2012).
Here, Widmar claims Sun Chemical’s reason for termination was
pretextual because the cited performance problems were not his
fault.
He argues that Sun Chemical’s pretextual reasons are
illustrated by the fact that Roberts and Sun Chemical learned that
one
of
the
quality
control
problems
was
the
Chemical’s purchasing department and not Widmar.
Statements of Fact at 3.
result
of
Sun
Pl.’s L.R. 56.1
As previously stated, the Court does not
find this evidence points to a discriminatory motive.
See Scruggs
v. Garst Seed Co., 587 F.3d 832, 838-39 (7th Cir. 2009) (pretext
must be “more than just faulty reasoning or mistaken judgment”).
The Court finds Widmar’s arguments regarding his lack of prior
complaints equally unavailing. See Smith v. Allstate Ins. Co., No.
99-C-906, 2002 U.S. Dist. LEXIS 5915 at *20 (N.D. Ill. Mar. 29,
2002) (stating that evaluations given from different supervisors do
not establish that an employer is enforcing its policies in a
disparate
fashion
or
establish
pretext
since
“[d]ifferent
supervisors may impose different standards of behavior, and a new
supervisor
may
decide
to
enforce
policies
supervisor did not consider important.”).
that
a
previous
It is undisputed that
Roberts became Widmar’s supervisor in late 2008 and that his job
was to fix a number of product performance issues.
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See Pl.’s Resp.
to Defs.’ Statement of Material Fact at ¶¶ 13, 14.
Thus, the Court
does not find the lack of prior complaints Widmar received under a
different supervisor indicative of intentional discrimination.
Next, Widmar argues that he can establish pretext because Sun
Chemical changed its reasons for his termination.
Opp. to Defs.’ Mot. for Summ. J. at 20.
allegation meritless.
Pl.’s Mem. in
The Court finds this
The record is void of any evidence which
suggests that Sun Chemical changed its reason for terminating
Widmar.
Instead, Sun Chemical has maintained that Widmar was
terminated for performance reasons.
Finally, Widmar claims Sun Chemical’s reasons for termination
were pretextual because it failed to follow its own internal
policies. Specifically, he contends that Sun Chemical’s failure to
provide
him
improvement
a
performance
plan
inconsistency.
prior
review
to
his
or
implement
termination
is
a
performance
an
internal
He argues that this is Sun Chemical’s “normal
practice for addressing issues that are “potentially correctable.””
Pl.’s L.R. 56.1 Statements of Additional Fact at 6 ¶ 24.
However,
the evidence Widmar relies on as support states that it is Sun
Chemical’s policy to examine disciplinary situations “on a case-bycase basis [to] determine if a PIP [performance improvement plan]
is an appropriate course of action.”
No. 193-3, Page ID# 8334.
Pl.’s Ex. C. at 49, ECF
Additionally, Widmar does not present
evidence of similarly situated, substantially younger employees
being placed on a PIP prior to termination.
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In light of this, the
Court does not find Widmar can establish that Sun Chemical failed
to follow its own internal policy regarding performance reviews or
performance improvement plans. See Lyon Fin. Servs., Inc. v. Bella
Medica Laser Ctr., Inc., 738 F.Supp.2d 856, 859 (N.D. Ill. 2010)
(stating that denials which do not “directly oppose an assertion
are improper and thus the contested fact is deemed to be admitted
pursuant to Local Rule 56.1”).
Widmar also points to DeSandre’s attendance at his termination
meeting as evidence of an internal inconsistency.
DeSandre’s
presence
at
the
meeting
was
Widmar claims
contrary
to
standard
procedures at Sun Chemical since DeSandre was not one of Widmar’s
direct supervisors.
Sun Chemical does not dispute DeSandre’s
presence at the termination meeting, nor the fact that DeSandre was
not Widmar’s supervisor.
Defs.’ Resp. to L.R. 56.1 Statement of
Additional Facts at 15.
However, Widmar fails to present any
evidence which suggests that it was Sun Chemical’s policy to only
allow
direct
meeting.
supervisors
to
attend
an
employee’s
termination
Moreover, even if he presented such evidence, the Court
does not find this relevant in demonstrating that Sun Chemical’s
reasons
for
discrimination.
Widmar’s
termination
were
a
guise
for
age
See Filar v. Bd. of Educ. of City of Chi., 526
F.3d 1054, 1063 (7th Cir. 2008) (stating that “[s]howing pretext
requires proof that the defendant’s explanation is unworthy of
credence.”).
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Widmar also asserts that Sun Chemical failed to follow its own
internal policies with respect to paying him a severance.
claims
that
since
he
did
not
receive
a
severance
Widmar
and
other
employees who had been fired for performance had, this is evidence
of discrimination.
Sun Chemical responds that while it does not have a formal
policy on paying severances, it “usually does not provide severance
pay
to
employees
performance.”
at ¶ 23.
who
are
terminated
for
unsatisfactory
Defs.’ Reply at 9 citing Defs.’ Ex. C (Kraus Dec.)
While Sun Chemical admits it has made four exceptions to
this general rule in the past three years, none of those exceptions
involved employees similarly situated and substantially younger
than Widmar.
Id. at 9 n. 18.
In fact, three of the four former
employees would have been members of same protected class as Widmar
at the time of their termination.
See Pl.’s Resp. to Def.’s L.R.
56.1(a)(3) Statements of Material Facts at 24, ¶ 64.
Thus, the
Court does not find this evidence of discriminatory pretext.
See
Faas v. Sears, Roebuck & Co., 532 F.3d 633, 643 (7th Cir. 2008)
(finding
that
“sometimes
do
“[a]
pattern
better”
and
where
the
protected-class
“sometimes
do
worse”
members
than
their
comparators is not evidence of age discrimination”).
The final piece of evidence that Widmar claims establishes
pretext,
is
the
fact
a
significant
amount
of
his
job
responsibilities were assumed by employees outside the protected
age group.
He argues this is evidence that Sun Chemical treated
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similarly situated employees who were not members of the protected
class more favorably.
See Hemsworth v. Quotesmith.com, Inc., 476
F.3d 487, 492 (7th Cir. 2007) (when a plaintiff is fired because of
a reduction of workforce personnel, a plaintiff need only show his
duties were absorbed by someone outside the protected class).
In this case however, Widmar was not fired because of a
reduction
of
performance.
workforce
personnel;
Moreover,
even
if
he
the
was
fired
Court
assumed
for
poor
Widmar’s
termination was due to a reduction of staff at Sun Chemical, the
Seventh Circuit has found evidence of younger employees absorbing
job duties insufficient to establish pretext.
See, e.g., Merillat
v. Metal Spinners Inc., 470 F.3d 685, 692-93 (7th Cir. 2006)
(affirming summary judgment for the employer because the employee
failed to establish that the employer’s proffered reasons for
termination
were
pretextual
despite
the
fact
her
job
responsibilities were assumed by a member outside the protected age
group.).
As such, the Court here does not find this evidence
indicative of a discriminatory pretext.
See id.
Accepting all of Widmar’s arguments as true, the Court does
not
find
he
has
presented
evidence
which
suggests
that
Sun
Chemical’s proffered reasons for termination were a falsity. After
examining the record, the Court does not find a triable issue
exists regarding whether Widmar can demonstrate that but-for his
age, he would not have been fired.
See Testerman v. EDS Technical
Products Corp., 98 F.3d 297, 306 (7th Cir. 1996) (rejecting an
- 18 -
employee’s
argument
that
the
court
neglected
to
examine
the
evidence in its totality, because “[a]dding together a string of
nothings still yields nothing.”).
Accordingly, the Court grants
summary judgment to Sun Chemical on Widmar’s age discrimination
claim.
B.
Retaliation
Widmar’s second claim is that Sun Chemical retaliated against
him in violation of the ADEA by making defamatory comments about
him after he filed a charge with the EEOC.
Sun Chemical argues
Widmar’s retaliation claim fails because he cannot establish a
prima facie case.
The Court agrees.
To avoid summary judgment on his retaliation claim under the
ADEA, Widmar can proceed under the direct or indirect method.
Szymanski v. Cnty. of Cook, 468 F.3d 1027, 1029 (7th Cir. 2006).
Under the direct method, he must show that (1) he engaged in a
statutorily
protected
activity;
(2)
he
suffered
an
adverse
employment action; and (3) there is a causal connection between the
two.
Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 657 (7th
Cir. 2012).
Alternatively, under the indirect method, Widmar must
show (1) he engaged in a statutorily protected activity; (2) he met
Sun Chemical’s legitimate expectations; (3) he suffered an adverse
employment action; and (4) he was treated less favorably than
similarly situated employees who did not engage in the statutorily
protected activity.
Kodl v. Bd. of Educ. Sch. Dist. 45, Villa
Park, 490 F.3d 558, 562 (7th Cir. 2007).
- 19 -
Sun Chemical argues that under either method Widmar’s claim
must fail.
Widmar disagrees.
He appears to proceed under the
direct method and argues that summary judgment is inappropriate
because disputed issues of fact remain regarding whether the
alleged defamatory comments were made.
As a preliminary matter, it is undisputed that Widmar’s May
2010 EEOC charge of age discrimination constitutes a statutorily
protected activity under the ADEA.
Thus, the relevant inquiry is
whether Widmar can establish that he suffered an adverse employment
action after filing his EEOC charge and whether he can establish a
causal connection exists between the filing of the charge and the
adverse employment action.
Widmar contends that two employees from Sun Chemical accused
him of “sabotaging” Sun Chemical.
Mot. for Summ. J. at 25.
he filed his EEOC charge.
Pl.’s Mem. in Opp. to Defs.’
Allegedly, these remarks were made after
He claims this constitutes an adverse
employment action.
Even if the Court assumes the alleged comments were made
(which Defendants vigorously deny) and assumes that such comments
constitute an adverse employment action, Widmar has failed to
establish a causal connection between the comments and EEOC charge.
It is undisputed that Widmar filed his charge with the EEOC in May
2010.
He claims that he was told “in the fall of 2010 . . . that
sales staff from Rycoline had said that Mr. Widmar had sabotaged
Rycoline products.”
Pl.’s Mem. in Opp. to Defs.’ Mot. for Summ. J.
- 20 -
at 24.
He states that this “is more than a sufficient causal
connection to survive a motion for summary judgment.”
The
Court
disagrees.
“A
telling
temporal
Id.
sequence
can
establish the required nexus, but by telling we mean that the
employer’s adverse action follows fairly soon after the employee’s
expression.
One day might do it, so too might one week.”
Sweeney
v. West, 149 F.3d 550, 557 (7th Cir. 1998) (citations omitted).
Here, Widmar claims the defamatory remarks were made approximately
four months after his EEOC charge.
Without more, the Court finds
this insufficient to create a causal connection between Widmar’s
protected activity and the adverse employment action.
See Kasten
v. Saint-Gobain Performance Plastics Corp., 703 F.3d 966, 974 (7th
Cir. 2012) (“[M]ere temporal proximity between the filing of the
charge of discrimination and the action alleged to have been taken
in retaliation for that filing will rarely be sufficient in and of
itself to create a triable issue.”); see also Longstreet v. Ill.
Dep’t of Corr., 276 F.3d 379, 384 (7th Cir. 2002) (affirming
summary judgment for the defendant employer on an employee’s
retaliation claim because the only evidence of a causal connection
was the fact that the adverse action occurred four months after the
protected activity.).
While
Widmar
claims
he
has
also
presented
a
“mosaic
of
circumstantial evidence probative of retaliation,” the Court does
not find such evidence convincing.
Mot. for Summ. J. at 25.
Pl.’s Mem. in Opp. to Defs.’
The only evidence Widmar references are
- 21 -
statements Sun Chemical made to the EEOC regarding Widmar’s poor
performance and poor communication skills.
Id.
Widmar contends
these statements were false and claims this is evidence that Sun
Chemical’s explanation for Widmar’s termination changed over time.
However, there is nothing in the record to support such a claim.
Instead, the record is replete with evidence that demonstrates that
Roberts’ initial complaints regarding Widmar’s work performance
were the reason for his termination.
As such, the Court does not find Widmar can establish a causal
connection between his EEOC charge and the alleged disparaging
remarks.
Therefore, the Court grants Defendants’ motion for
summary judgment on Widmar’s retaliation claim.
C.
Defamation
Widmar’s final claim is that all Defendants are liable for
defamation.
Defendants contend they are entitled to summary
judgment because Widmar has failed to present admissible evidence
that establishes Ramsey or Knott made the alleged comments.
To state a defamation claim in Illinois, a plaintiff must
present facts that demonstrate that (1) the defendant made a false
statement
about
the
plaintiff;
(2)
the
defendant
made
an
unprivileged publication of that statement to a third party; and
(3) the publication caused damages.
Green v. Rogers, 917 N.E.2d
450, 459 (Ill. 2009) (citation omitted).
A defamatory remark is
"published" when it is communicated to someone other than the
plaintiff. Morris v. Harvey Cycle & Camper, Inc., 911 N.E.2d 1049,
- 22 -
1054 (Ill. App. Ct. 2009).
A statement is considered defamatory
"if it tends to cause such harm to the reputation of another that
it lowers that person in the eyes of the community or deters third
persons from associating with him."
Kolegas v. Heftel Broad.
Corp., 607 N.E.2d 201, 206 (Ill. 1992).
There
are
two
types
of
defamation under Illinois
law
–
defamation per se and defamation per quod. See Giant Screen Sports
v. Canadian Imperial Bank of Commerce, 553 F.3d 527, 532 (7th Cir.
2009).
Statements that are obviously harmful to a plaintiff’s
reputation are considered defamation per se.
Hukic v. Aurora Loan
Servs., 588 F.3d 420, 438 (7th Cir. 2009).
Illinois recognizes
five categories of statements that are considered actionable per
se, including “those that prejudice a party, or impute lack of
ability in his or her trade, profession or business.” Giant Screen
Sports, 553 F.3d at 532.
Widmar alleges he was defamed on two separate occasions.
The
first incident involved an October 2009 email that Defendant
Charles Ramsey sent to all of Rycoline and US Ink (a separate
entity owned by Sun Chemical) that stated Widmar’s department was
“at fault for problems with the ink.”
Mot. for Summ. J. at 25.
Pl.’s Mem. in Opp. to Defs.’
Defendants claim this incident is time-
barred under Illinois’ statute of limitations.
See 735 Ill. Comp.
Stat. 5/13-201 (one year statute of limitations for defamation
claims).
Widmar agrees, and withdraws this claim voluntarily.
- 23 -
The
second
instance
comments
Ramsey
and
of
Knott
alleged
allegedly
intentional “sabotage” of Sun Chemical.
defamation
made
involves
regarding
the
Widmar’s
Defendants claim they are
entitled to judgment as a matter of law because Widmar failed to
present admissible evidence that such statements were made.
The Court agrees with Defendants that several paragraphs in
Widmar’s
statement
of
material
facts
cite
to
affidavits
and
portions of deposition testimony that contain inadmissible hearsay.
Marchioni v. Bd. of Educ., 341 F.Supp.2d 1036, 1049 (N.D. Ill.
2004); see also Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir.
2007) (a plaintiff must present admissible evidence to survive
summary
judgment).
The
Court
finds
Widmar’s
other
support
irrelevant or misplaced.
For example, Widmar references the amended declaration of Jose
Sanchez as support for the fact that the sabotage comments were
made.
See Pl.’s Ex. M at ¶ 4.
declaration,
there
is
no
However, after reviewing Sanchez’s
mention
of
comments
of
“sabotage.”
Instead, paragraph four states that Sun Chemical had a staff
meeting after Widmar was terminated and at this meeting employees
were
informed
that
Widmar
had
been
terminated
because
he
“authorized a change in gum in a product formula, and subsequently
allowed the product to be sold to customers which caused returns,
complaints and subsequent costs to Sun Chemical.” See id. Besides
the fact that this does not mention anything about intentional
sabotage, Widmar has admitted that he failed to quarantine a non- 24 -
compliant product in November 2009.
L.R.
56.1(a)(3)
Statements
of
See Pl.’s Resp. to Defs.’
Material
Fact
at
¶
29.
This
admission makes Sanchez’s comments unpersuasive as support for a
claim of defamation.
See Bradley v. Avis Rental Car Sys., 902
F.Supp. 814, 821 (N.D. Ill. 1995) (granting summary judgment to a
defendant after the court determined that the alleged statements
were either true, or capable of innocent construction).
The
Court
finds
the
same
is
true
with
respect
to
the
deposition testimony of Victoria DiDomenico, another Sun Chemical
employee.
portions
See Pl.’s Ex. L at 32-33.
of
DiDomenico’s
testimony,
After reviewing the relevant
the
Court
finds
Widmar’s
allegations that other employees were accusing him of “sabotage”
unsupported.
See id. (stating that she did not remember “exactly”
the conversation she had with Ramsey, but that Ramsey told her
Widmar made a change that “screwed things up” for the company).
Ronald Petzel, a former customer of Sun Chemical, is the last
individual Widmar contends informed him of the alleged sabotage
comments. However, at his deposition, Petzel testified that he did
not “recall having [a] conversation” with Widmar about employees at
Sun Chemical saying that he “had been terminated . . . for
sabotaging Rycoline Products” and stated that he “never relayed any
of
that
[the
alleged
comments
of
sabotage],
[and
instead]
believe[d] George [Widmar] assumed they made statements about it.”
Pl.’s Ex. Q (Petzel Dep.) at 66-68.
- 25 -
Because both DiDomenico and Petzel fail to provide testimony
that the defamatory comments were made, Widmar seeks to admit his
own deposition testimony regarding his version of his conversations
with
DiDomenico
and
Petzel.
Widmar
requests
to
admit
testimony under the residual exception to the hearsay rule.
this
See
FED. R. EVID. 807.
“Evidence is admissible under the residual exception only if
it
carries
sufficient
circumstantial
guarantee[s]
of
trustworthiness as determined by such factors as (1) the probable
motivation of the declarant in making the statement; (2) the
circumstances under which it was made; and (3) the knowledge and
qualifications of the declarant.
Wielgus v. Ryobi Technologies,
Inc., 893 F.Supp.2d 920, 928 (N.D. Ill. 2012). As Defendants point
out, Widmar’s motivation in arguing for the admission of his
double-hearsay
testimony
is
the
fact
that
he
is
seeking
significant amount of damages for his defamation claim.
undermines a guarantee of trustworthiness.
See id.
a
This
In addition,
it is undeniable that Widmar lacks personal knowledge about the
alleged sabotage comments, as the testimony he seeks to admit
essentially amounts to a “she said, that he said” story.
In light
of the fact that both DiDomenico and Petzel have provided testimony
about their conversations with Widmar and other Sun Chemical
employees, the Court fails to see how Widmar’s testimony provides
greater indicia of reliability.
- 26 -
Because of this, and because the residual exception is meant
to be construed narrowly, this Court declines to admit Widmar’s
double-hearsay testimony under Rule 807. See Keri v. Board of Trs.
of Purdue Univ., 458 F.3d 620, 631 (7th Cir. 2006); see also
Storlarczyk
F.Supp.2d
834,
plaintiff’s
exception
v.
Senator
842
(N.D.
deposition
because
Intern.
Ill.
Freight
2005)
testimony
the
under
statements
Forwarding,
(declining
the
lacked
to
residual
LLC,
376
admit
a
hearsay
guarantees
of
trustworthiness and because the plaintiff failed to rebut the
presumption of inadmissibility).
Since Widmar has failed to
present sufficient facts which demonstrate that Ramsey or Knott, or
any other Sun Chemical employee made defamatory statements about
him, the Court grants all Defendants summary judgment on Widmar’s
defamation claim.
See Cody v. Harris, No. 03-CV-934, 2004 WL
1254129 at *4 (N.D. Ill. June 8, 2004).
IV.
CONCLUSION
For the reasons stated herein, the Court grants Defendants’
Motion for Summary Judgment.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:5/15/2013
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