Mirocha v. Palos Community Hospital, et al
Filing
180
MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 3/8/2017. Mailed notice(cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH MIROCHA,
Plaintiff,
v.
PALOS COMMUNITY HOSPITAL and KEN
LASH,
Defendants.
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Case No. 11-cv-4542
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Joseph Mirocha brings this action against Defendants Palos Community
Hospital and Ken Lash alleging age discrimination, retaliation, defamation, intentional and
negligent infliction of emotional distress, and failure to pay Plaintiff for unused sick leave.
Currently before the Court are the parties’ cross-motions for summary judgment [146] and [167].
For the reasons that follow, the Court grants Defendant’s motion for summary judgment [146]
and denies Plaintiff’s cross-motion for summary judgment [167] as to Plaintiff’s federal claims
in Counts I and II. In view of that disposition of the federal claims, Plaintiff’s remaining state
law claims in Count III through Count X are dismissed without prejudice. The Court will enter a
final judgment and close the case.
I.
Background
The following facts are drawn primarily from the parties’ Local Rule 56.1 statements,
[148], [168], and [173].1 This case arises from the termination of Plaintiff Joseph Mirocha from
1
As a preliminary matter, the Court notes that Local Rule 56.1 requires a party moving for summary
judgment to submit a statement of material facts as to which the movant contends there is no genuine
issue and entitles the movant to judgment as a matter of law. The “movant’s 56.1(a) statement should
contain only factual allegations” and “be limited to material facts, that is, facts pertinent to the outcome of
the issues identified in the summary judgment motion.” Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill.
Defendant Palos Community Hospital (“PCH”) in April 2011.
PCH hired Plaintiff as the
Electrical Department Supervisor on October 6, 2003, when Plaintiff was fifty-one years old.
[148, at ¶ 27.] Plaintiff reported to Defendant Ken Lash, Manager of Clinical Engineering, who
in turn reported to Marty Baron, Vice President of Facilities. [Id. at ¶ 28.] Plaintiff was
terminated on April 8, 2011, when he was fifty-nine years old. [See id. at ¶ 50.] Defendants
allege that Plaintiff was terminated from PCH because of his failure to fulfill his job duties
relating to the electrical database. [Id. at ¶ 32.] Plaintiff alleges that he was fired because of his
age. [168, at ¶ 42.]
2000). Local Rule 56.1 also requires the nonmovant to file a “concise response” to the movant’s
statement of facts containing “any disagreement, specific references to the affidavits, parts of the record,
and other supporting materials.” L.R. 56.1(a). “A general denial is insufficient to rebut a movant’s
factual allegations; the nonmovant must cite specific evidentiary materials justifying the denial.” Malec,
191 F.R.D. at 584. Rule 56.1(b)(3)(C) is not satisfied by “purely argumentative denials,” id., or “evasive
denials that do not fairly meet the substance of the material facts asserted.” Bordelon v. Chi. Sch. Reform
Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000). “The purpose of the 56.1 statement is to identify for the
Court the evidence supporting a party’s factual assertions in an organized manner[;] it is not intended as a
forum for factual or legal argument.” Malec, 191 F.R.D. at 585.
Plaintiff’s Response to Defendants’ Statement of Facts [168] does not comply with these
requirements. Many of Plaintiff’s “concise responses” do not directly address Defendants’ statement of
facts but rather amount to lengthy recitations of unrelated allegations, some more than eight pages long.
[See, e.g., 168, at ¶ 44.] Additionally, many of Plaintiff’s responses set forth improper arguments, offer
assertions without citations to specific evidentiary materials, misrepresent the record, and are so repetitive
that any relevant facts or responses are obfuscated in a deluge of unrelated or irrelevant assertions.
Nonetheless, the Court will exercise its discretion in the direction of leniency and consider the
portions of Plaintiff’s responses that arguably meet the requirements of the local and federal rules.
Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013) (making clear that, although district courts
have discretion to require strict compliance with Rule 56.1, “[i]t does not follow * * * that district courts
cannot exercise their discretion in a more lenient direction”). Where Plaintiff’s response sets forth an
argument, a legal conclusion, or denies a statement of fact improperly by failing to cite specific
evidentiary materials supporting the denial, the Court will not consider that response and the Defendants’
statement of fact will be deemed to be admitted. See L.R. 56.1(a), 56.1(b)(3)(B); see also Malec, 191
F.R.D. at 584; Moore-Fotso v. Bd. of Educ. of the City of Chicago, 2016 WL 5476235, at *2 (N.D. Ill.
Sept. 29, 2016). Additionally, the Court disregards a denial that does more than negate its opponent’s fact
statement—that is, it is improper for a party to smuggle in new facts into its response to a party’s Rule
56.1 statement of fact. See, e.g., Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008);
Tolson v. City of Chicago, 2016 WL 1043326, at *1 (N.D. Ill. Mar. 16, 2016).
2
A.
PCH’s Electrical Equipment
PCH is accredited by the Joint Commission on Accreditation of Health Care Facilities
(“Joint Commission”).
[148, at ¶ 10.]
To maintain accreditation, PCH’s Safety Steering
Committee and its subcommittees ensure that PCH is compliant with the Joint Commission’s
standards by developing and executing management plans for various areas, including utility
systems and medical equipment.
[Id. at ¶ 11.]
PCH employees are expected to conduct
preventative maintenance on the electrical equipment and to document that maintenance.2 [Id. at
¶ 12.]
In 2010, PCH began a six-year expansion project, which involved the construction of a
new building and required the addition of several hundred new devices and pieces of health care
equipment, all of which needed to be entered into an electrical database. [Id. at ¶¶ 17, 26.] Prior
to January 2011, PCH tracked information in two separate databases: the electrical equipment
database and the electrical panel database. [Id., Exhibit C (Baron Deposition), at 22:10–23:20.]
The electrical equipment database tracked information about equipment that was subject to
preventative maintenance. [Id. at 22:10–20.] The electrical panel database tracked information
about circuit panels, such as “where they are fed from, what areas they served, if they had
additional space in them for growth and if they had breakers that were unused[.]” [Id. at 22:15–
23:3.] When the two separate databases were created, they had different functions and different
requirements. [Id. at 79:2–8.] The electrical panel database was not originally conceived to
schedule preventative maintenance. [Id.; see also id. at 22:15–23:3.] Around January 27, 2011,
the electrical panel database was merged into the electrical equipment database. [Id. at ¶ 25.]
2
Preventative maintenance is regularly scheduled service to a piece of equipment that is conducted at
appropriate intervals, which are often recommended by the manufacturer. [148, at ¶ 22.]
3
B.
Maintaining the Databases
Defendants allege that as the Electrical Supervisor, Plaintiff was responsible for
maintaining electrical safety throughout the hospital, including maintaining the electrical
equipment database, performing incoming inspections, writing preventative maintenance
procedures and ensuring that those procedures were performed, working with the safety officer
to ensure that fire alarm preventative maintenance and repairs were conducted, and performing
any other tasks requested by Baron and work delegated by Defendant Lash. [Id. at ¶¶ 30, 34.]
On September 29, 2008, Defendant Lash emailed Plaintiff two Excel spreadsheets to assist
Plaintiff in ensuring, and to facilitate their future discussions about, the accuracy of the electrical
equipment database. [Id. at ¶ 37.] In November 2008, Defendant Lash questioned Plaintiff
about the completeness of the electrical equipment database, including the accuracy of the
preventative maintenance tasks listed. Plaintiff agreed to make improvements in these areas.
[Id. at ¶ 38.]
During Plaintiff’s September 30, 2010 Management Performance Appraisal,
Defendant Lash again directed Plaintiff to improve the accuracy of the electrical equipment
database. [Id. at ¶ 39.] Specifically, Plaintiff’s September 30, 2010 Management Performance
Appraisal states as follows:
Major Job Function 1. Responsible for electrical work performed throughout the
hospital, grounds and satellite facilities.
Comments: Under [Plaintiff’s] direction, the daily electrical needs of the hospital
and satellite facilities have been satisfactorily met. [Plaintiff] needs to improve in
the promptness of entering incoming inspections of new equipment into the
electrical database and the completeness of the required fields for equipment
entries including serial numbers, model numbers, and acquisition dates.
[Plaintiff] also needs to make sure that all equipment histories are accurate and
include work by outside vendors.
***
4
Work Goals
1. To verify the accuracy of the electrical equipment database and service
histories, including entering incoming inspections promptly and completely.
[Id., Exhibit A5, (September 30, 2010 Management Performance Appraisal).]
Plaintiff disagrees that he was responsible for maintaining the electrical equipment
database. Rather, Plaintiff contends that the Hospital Equipment Management Program policy
requires Defendant Lash, as Manager of the Clinical Engineering, to document each piece of
equipment into the database. Plaintiff asserts that PCH’s policy states:
The department managers shall be responsible for entering all the necessary
information for new equipment when it is put into service, this includes
information such as PCH number, model number, serial number, manufacturer,
user department and any other information which is necessary to maintain proper
records. The department managers will also be responsible for setting up a
comprehensive preventive maintenance schedule for each piece of equipment.
[168, ¶ 21; see also 168, Exhibit 6.] Defendants acknowledge that Plaintiff’s job description did
not explicitly include the responsibility of maintaining the equipment database but submit that
Defendant Lash, as Plaintiff’s supervisor, delegated to Plaintiff the responsibility of maintaining
the database. [173, at ¶ 8; 148, at ¶ 35.] Plaintiff concedes that as his supervisor, Defendant
Lash delegated work to him and was responsible for ensuring that he performed the work
assigned to him. [148, at ¶ 34; 168, at ¶ 34.] Plaintiff also admits that Defendant Lash delegated
to Plaintiff the responsibility of maintaining the electrical equipment database. [168, at ¶ 35.]
However, on February 3 or 4, 2011, Plaintiff told Lash that he did not think it was his job to
enter the data and update the database. [Id.]
Additionally, Plaintiff claims that Defendant Lash was responsible for updating the other
database—the electrical panel database—but failed to do so. [168, ¶ 24(m).] Plaintiff contends
that the electrical panel database lacked PCH-required fields—such as fields for model number,
serial number, and manufacturer—from 1995 until January 2011, when the panel database was
5
merged into the equipment database.
However, the record evidence demonstrates that in
February 2011, Plaintiff acknowledged that he had been working on both the equipment database
and the panel database. [168, Exhibit 24.]
C.
Plaintiff’s January 28, 2011 Deadline (Thirty Day Deadline)
On December 30, 2010, Defendant Lash told Plaintiff that he was still not satisfied with
Plaintiff’s progress on the electrical equipment database and gave him thirty days to bring the
database into full compliance. [148, at ¶ 40; 148, Exhibit B1 (December 30, 2010 File Memo).]
In January 2011, Baron told Defendant Lash that the electrical equipment database was deficient
and directed Defendant Lash to make sure that it was up to date. [148, at ¶ 41.]
Plaintiff alleges that in December 2010, the electrical equipment database “was in good
shape.” [168, ¶ 40.] Yet, he also contends that it was difficult to meet this thirty day deadline.
Plaintiff alleges that in or about 2010, the Electrical Department facilitated the largest electrical
infrastructure cut-over in the history of PCH, “which required many months of man hours to be
devoted and taken away from the electricians’ day to day responsibilities.” [168, at ¶ 10.]
According to Plaintiff, the thirty day deadline “virtually caused his department to be shut down
in order to meet this deadline,” [168, at ¶ 9], and the demands made upon him concerning the
electrical database were “designed to cause him to quit and/or designed to set him up for
involuntary termination.” [Id.]
Around January 27, 2011, the electrical panel database was merged into the electrical
equipment database. [148, at ¶ 25.] Baron testified that he believed that the electrical panel
database was updated on a regular basis. [148, Exhibit C, at 25:7–9.] Plaintiff contends that the
panel database was not up to date, and thus when it was merged into the equipment database, the
completion rate dropped from over 90% to 60%. [168, at ¶ 41.] According to Plaintiff, he met
6
his thirty day deadline by updating the equipment database by January 27, 2011. [Id. at ¶ 24(q);
see also 168, Exhibit 2 (Mirocha Unsworn Declaration), at ¶ 20.] However, Plaintiff contends
that after his work day ended at 3:30 pm on January 27, 2011, Defendant Lash had the electrical
panel database moved into the electrical equipment database, which created thousands of empty
fields in the equipment database that needed to be filled in, making it impossible for him to
complete his task by the January 28, 2011 deadline. [Id. Exhibit 2, at ¶ 20.] Plaintiff does not
deny that Defendant Lash advised Plaintiff that any deficiencies caused by the merging of the
two databases were not held against him and that he could cure those deficiencies at a later date.
[148, at ¶ 43; 168, at ¶ 44.]
Plaintiff alleges that Defendant Lash and Baron also set up obstacles to Plaintiff
performing his job by: (1) adding 16 “new job tasks” between the January 2011 and March 16,
2011, “intentionally setting [Plaintiff] up for failure and creating impossible deadlines”;
(2) instructing Plaintiff to refrain from talking to the electrical contractor installing the electrical
equipment Plaintiff was required to enter into the database; and (3) instructing Plaintiff to refrain
from discussing the electrical infrastructure with Tony Maiellaro, Manager of Plant Engineering.
[168, at ¶¶ 11–12; 168, Exhibit 2 (Mirocha Unsworn Declaration), at ¶¶ 8–9.]
D.
Baron’s February 2011 Review of Defendant Lash
On February 3, 2011, Baron filed a report regarding Lash’s January evaluation. [148,
Exhibit D6.] Baron asserted that Lash had made progress in his work goal of updating the
electrical database but noted that the database was still missing information for many pieces of
equipment and that only 56% of the required preventative maintenance on “critical utility
equipment” had been completed. Baron wrote in the report that Lash “referred to making
completion of this [preventative maintenance] database a goal for [Plaintiff] to complete in 3
7
months on his evaluation last fall, and additionally gave [Plaintiff] 30 more days to complete this
in early January 2011 when he failed to meet the first goal.” [Id.] Baron’s report also states that
he and Lash discussed how PCH’s documentation requirements had not changed during
Plaintiff’s tenure at the hospital and that the lack of appropriate documentation for new
equipment has put PCH at risk for its next Joint Commission inspection.
Finally, Baron
suggested that Lash continue to follow the progressive disciplinary process for Plaintiff. [Id.]
Plaintiff claims that Baron was incorrect and that he was not given a three month
deadline to complete the database updates in his September 30, 2010 Management Performance
Appraisal. [168, at ¶ 42; Exhibit 23.] Defendant Lash testified in his deposition that he did not
give Plaintiff a specific deadline for updating the database in Plaintiff’s September 30, 2010
Management Performance Appraisal.
[148, Exhibit B (Lash Deposition), 146:14–147:3.]
However, Defendant Lash also testified that Plaintiff’s work on the project was already late at
the time of his September review. [Id.]
E.
Plaintiff’s Request for a Promotion
On February 4, 2011, Plaintiff sent Defendant Lash an email requesting a promotion.
[168, Exhibit 24.] In his email, Plaintiff acknowledged that on December 30, 2010, Defendant
Lash gave him thirty days to “bring the electrical database to 100% accuracy with maintenance
procedures to be updated and added.” Plaintiff asserted that “[t]he largest task of the two
databases was not the equipment database [sic] it was the panel database.” Plaintiff noted that
“[o]ver the years, I have been directed to do the database entries including maintenance
procedures. I have during the last year updated the equipment database on a monthly basis.”
Plaintiff also acknowledged that he had worked on the panel database and expressed his
dissatisfaction with the merging of the two databases, stating:
8
While updating the panel database, the 30 day time limit conditions changed two
weeks into the job. * * * Three weeks into updating the panel database it was
moved into the equipment database and I am now told I failed with there being no
manufacturer, serial number or model number entered in the fields. This again
changed the original direction of the 30 day time limit.
[Id.] Plaintiff did not explicitly reference age discrimination in his February 4, 2011 email to
Defendant Lash. Rather, he stated his belief that he had been singled out since the central plant
was in “the same situation,” yet Rich Chapan from Plant Engineering was “under no threat of
discipline and he ha[d] not completed updating their database.” [Id.] Plaintiff went on to explain
that he believed maintaining the database and establishing maintenance procedures to be “at a
job level above [his].” Additionally, he admitted that he had “total responsibility” for “the entire
database,” stating: “Although under ‘performing other related duties’ [sic] may cover my doing
some of the database entry I do not believe it would include total responsibility for establishing
all procedures and policies and maintaining the entire database as I have been doing.” [Id.]
Thus, Plaintiff requested that Defendant Lash promote him to Manager with an increase in salary
compensate him “for the work [he was] actually doing.” [Id.]
F.
Plaintiff’s February 21, 2011 Deadline
On February 4, 2011, Defendant Lash issued Plaintiff a Corrective Action Form
indicating that Plaintiff had failed to fulfill his job duties related to the electrical database. [148,
Exhibit A7.] In the accompanying memo, Defendant Lash asserted that on January 30, 2010,
Plaintiff was given a thirty day deadline to bring the electrical database into full compliance.
[148, Exhibit A8 (February 4, 2011 File Memo).] The memo explained that although Plaintiff
had made significant improvements in the state of the database, more work needed to be done,
and he had missed the goal of full compliance in thirty days. [Id.] Specifically, Defendant Lash
indicated that “[t]he major database deficiencies at this time include providing completeness of
9
data entries, (particularly with the equipment brought over from the panel database), setting up
correct [preventative maintenance] procedures on electrical infrastructure equipment, and
updating the emergency procedures.” [Id.] Defendant Lash gave Plaintiff a new deadline of
February 21, 2011 to update the emergency procedures and indicated that he would “allow the
data elements from the equipment previously in the panel database to be updated during the
performance of the infrared scanning.” [Id.] Defendant Lash warned Plaintiff that “[f]ailure to
meet either of these expectations will result in an escalation in the corrective action process.”
[Id.]
Defendant Lash’s memo also discussed Plaintiff’s work more generally, stating:
Looking back to [Plaintiff’s] tenure at [PCH], I think that his most significant
failure as the electrical supervisor has been his inability to identify what his job
duties are and then to work well independently. [Plaintiff] is very good at
performing “work as assigned” but the position of electrical supervisor requires
much more than that. The foundation of the entire electrical department depends
on an accurate database and his neglect of this over the years has led to the
desperate state that he is in now. [Plaintiff] has been employed at [PCH] since
September 2003 and any database inadequacies that exist are his responsibility
and not his predecessors.
[Id.] Finally, the Defendant Lash addressed Plaintiff’s assertion in his February 4, 2011 email
that “maintaining the database, to establish and create maintenance procedures” is a job level
above his, stating “I believe it is reasonable for an experienced electrical supervisor to be
responsible for setting up [preventative maintenance] procedures.” [Id.]
Defendants maintain that by February 24, 2011—three days after Plaintiff’s new
deadline—Plaintiff still had not cured the deficiencies in the electrical equipment database.
[148, at ¶ 44.] On February 24, 2011, Defendant Lash sent Plaintiff an email stating that he
wanted to “pro-actively provide [him] with feedback to assist [him] in completing the tasks that
were assigned,” and that he edited a document to help Plaintiff “visualize which fields may still
10
require more information to be provided.”
[Id., Exhibit B6 (February 24, 2011 Email).]
Defendant Lash asked Plaintiff to “[p]lease review this list for any missing information and
complete as needed. * * * As you know, I will have to explain any missing information to Mr.
Baron upon his return next week.” [Id.] The email also stated, “FYI, the electrical department’s
[preventative maintenance] completion percentage is 95.45 for general equipment and 97.38 for
utility equipment which is very good.” [Id.]
G.
Plaintiff’s Internal Complaint
On February 4, 2011, Plaintiff told Defendant Lash that he was going to complain to
human resources that Rich Chapan was not disciplined for database deficiencies. Plaintiff said
nothing about age discrimination. [148, at ¶ 54.] On February 18, 2011, Plaintiff complained to
Mary Denisienko, PCH’s Vice President of Human Resources, that he was being discriminated
against because of his age because Chapan was not disciplined for the same database
deficiencies.
[Id. at ¶ 55.]
Defendants investigated Plaintiff’s complaint, in part through
gathering more information about Plaintiff’s harassment claim by asking Holly Brasher and
Diane Pleines of the Human Resources Department to speak with Plaintiff. [Id. at ¶ 56; Exhibit
E (Mary Denisienko Deposition), 45:19–47:6; 168 Exhibit 2B (HR Email).] Brasher met with
Plaintiff on March 21, 2011. [See id., Exhibit F (Mary Brasher Deposition), 46:11–47:1.]
Denisienko also looked at the files of the individuals Plaintiff identified whom he believed
supported his claim to see if there were any complaints related to age discrimination and to see
the reasons they had changed jobs, but she did not find any support for Plaintiff’s claim. [148,
Exhibit E, 56:15–58:1.] Denisienko responded to Plaintiff that there was no support for his
discrimination complaint. [Id., at ¶ 57.]
Chapan’s position at PCH is Chief Operating Engineer, and he reports to Tony Maillero,
11
Manager of Plant Engineering. [Id., at ¶ 6.] Chapan is not in the same position as Plaintiff, does
not report to the same manager, is in a lower pay grade, and is paid on an hourly basis, whereas
Plaintiff was paid a salary. [Id. at ¶ 58.] Among other things, Chapan is responsible for entering
data into the electrical equipment database from incoming inspection sheets for all new
equipment that comes into the central plant. [Id. at ¶ 59.] Chapan testified that he understood
that if he failed to enter the data into the electrical equipment database, he would be subject to
discipline. [Id. at ¶ 60.] Chapan completed his database project by January 28, 2011. [Id. at ¶
61.]
H.
Plaintiff’s March 25, 2011 Deadline
Around March 4, 2011, Defendant Lash shared with Plaintiff a draft memorandum that
he intended to share with Baron. [Id. at ¶ 45.] The memorandum was based on Defendant
Lash’s initial impression of the status of the electrical equipment database and commended
Plaintiff for satisfying his obligations. [Id.] However, on March 8, 2011, Defendant Lash
revised his draft memorandum to reflect that while his initial impression was that Plaintiff was
successful in meeting his deadline, a closer scrutiny of the issues revealed that there were still
areas that required additional work in order to meet department and Joint Commission
requirements. [Id. at ¶ 46; 168, at Exhibit 29.] Defendant Lash stated that Plaintiff must
complete the additional work by March 25, 2011.
On March 24, 2011, Plaintiff sent Defendant Lash an email stating that he had completed
the tasks and that he needed Defendant Lash’s approval to enter three additional preventative
maintenance procedures. [148, at ¶ 47, Exhibit B8.] Defendant Lash did not respond to this
email, and he did not respond to Plaintiff’s March 23, 2011 email asking Defendant Lash to
advise on whether Plaintiff should create the three additional maintenance procedures. [168, at
12
¶ 47.]
Defendant Lash asked Baron to evaluate the accuracy of the electrical equipment
database.
[148, at ¶ 48.]
Defendants contend that Defendant Lash also spot-checked the
accuracy of Plaintiff’s recordkeeping on 48 items in the power plant and electrical gear and
found an error rate of over 50%. [Id. at ¶ 49.] Plaintiff asserts that Lash’s spot-check contained
errors and inaccurate information, that the error rate from the spot check was actually 2.67%, and
that Lash did not discuss the results of the spot-check with Plaintiff. [168, at ¶ 49.] Neither
Defendant Lash nor Baron spoke to Plaintiff about his work performance after March 25, 2011.
[168, at ¶ 34.]
I.
Plaintiff’s Termination
Plaintiff filed a charge of age discrimination with the Equal Employment Opportunity
commission (“EEOC”) on or about March 28, 2011. [148 at ¶ 62; 168, ¶ 35.] The EEOC asked
Plaintiff if he wanted them to dismiss the charge or to investigate it, which would take time.
Plaintiff asked the EEOC to dismiss the charge so he could file a lawsuit and not wait for an
investigation. [168, ¶ 35.] PCH received Plaintiff’s first EEOC charge on April 4, 2011. [148 at
¶ 63.] Baron knew about Plaintiff’s EECO charge and dismissal before Plaintiff was terminated.
[168, Exhibit D, (Baron Deposition II), 258:8–10.] Baron testified that Plaintiff’s EEOC charge
played no role in his decision to terminate Plaintiff’s employment. [Id. at ¶ 64.] Defendant Lash
did not know about Plaintiff’s EEOC charge until after Plaintiff was terminated. [Id. at ¶ 65.]
Defendant Lash recommended that Plaintiff be terminated, and Baron reviewed the
recommendation, discussed it with Defendant Lash, and agreed.
[148, Exhibit D (Baron
Deposition), 217:5–10.] Plaintiff was terminated on April 8, 2011. [Id. at ¶ 50.] Defendants
maintain that Plaintiff was terminated from PCH because of his failure to fulfill his job duties.
[Id. at ¶ 32.] Specifically, Defendants contend that Plaintiff repeatedly failed to bring PCH’s
13
electrical equipment database into compliance with Defendant Lash’s requirements and the Joint
Commission standards. [See id.] Plaintiff counters that Baron had Plaintiff fired because of his
age and “set [Plaintiff] up as a scape goat should the hospital fail its next Joint Commission
review.” [168, at ¶ 42.] Plaintiff contends that Baron placed blame on Plaintiff to cover up his
own failures and Defendant Lash’s failures in not updating the databases. [Id.]
Defendants contend that after Plaintiff was discharged, Defendant Lash was able to
correct in two weeks the errors in the electrical equipment database that Plaintiff was unable to
correct in several years. [148 at ¶ 52.] On June 13, 2011, PCH hired Charles Schmitt, age fiftythree, as the Electrical Department Supervisor. [Id. at ¶ 53.] Plaintiff filed a second charge of
discrimination on April 9, 2011, alleging that he was terminated in retaliation for engaging in
protected activity. [Id. at ¶ 66.] PCH received Plaintiff’s second EEOC charge on April 13,
2011. The charge was dismissed on April 19, 2011. [Id. at ¶ 67.]
When Plaintiff was terminated, his final paycheck did not include payment for accrued
but unused sick time. [148, at ¶ 16.] About one year after his termination, Plaintiff met with a
psychiatrist, who concluded that he was suffering from major depression. [See 168, Exhibit 1
(Trum Deposition), at 14:24, 17:8–10.]
J.
Procedural Background
Plaintiff filed this lawsuit on July 5, 2011, bringing various claims against Defendants
Lash and PCH. [1.] The Court granted Defendants’ motion to dismiss several of Plaintiff’s
claims for failure to state a claim and permitted Plaintiff to file an amended complaint. [39.]
Plaintiff has since amended and corrected his complaint multiple times. [See 44, 66, 104, 118.]
On December 11, 2015, Plaintiff filed his second amended complaint [137], which is the
operative complaint in this case, alleging unlawful termination under the Age Discrimination in
14
Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”) (Count I), unlawful retaliation
under the ADEA (Count II) and under Illinois law (Count III), breach of agreement against PCH
(Count IV), defamation against Defendant Lash (Count V) and against PCH (Count VIII),
intentional and negligent infliction of emotional distress against PCH (Counts VI and VII), and
breach of contract (Count IX) and violation of the Illinois Wage Payment and Collection Act
(Count X) for failure to pay for unused sick leave. Currently before the Court are the parties’
cross-motions for summary judgment.
II.
Legal Standard
Summary judgment is proper where there is “no dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of
material fact exists if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party
seeking summary judgment has the burden of establishing the lack of any genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In evaluating a motion for
summary judgment, the Court will construe all facts in the light most favorable to the nonmoving
party and draw all reasonable inferences in favor of the nonmoving party. Bell v. Taylor, 827
F.3d 699, 704 (7th Cir. 2016). Where, as here, the parties have submitted cross-motions for
summary judgment, the Court “take[s] the motions one at a time, construing all facts and
drawing all reasonable inferences in favor of the non-moving party.” Black Earth Meat Mkt.,
LLC v. Vill. of Black Earth, 834 F.3d 841, 847 (7th Cir. 2016). However, the Court will not
draw inferences that are “supported by only speculation or conjecture,” Williams v. Brooks, 809
F.3d 936, 944 (7th Cir. 2016), cert. denied, 2016 WL 4367440 (U.S. Oct. 17, 2016) (quoting
Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)) (internal citations omitted),
15
and “[c]onclusory allegations alone cannot defeat a motion for summary judgment.” Thomas v.
Christ Hosp. & Med. Ctr., 328 F.3d 890, 892 (7th Cir. 2003).
It is not the role of the Court to scour the record in search of evidence to defeat a motion
for summary judgment; instead, the nonmoving party bears the responsibility of identifying
evidence to defeat summary judgment. Harney v. Speedway SuperAmerica, LLC, 526 F.3d
1099, 1104 (7th Cir. 2008). To avoid summary judgment, the nonmoving party must go beyond
the pleadings and “set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250. Summary judgment is proper if the nonmoving party “‘fails to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.’” Ellis v. CCA of Tennessee LLC, 650
F.3d 640, 646 (7th Cir. 2011) (quoting Celotex, 477 U.S. at 322). The non-moving party “must
do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other
words, the “mere existence of a scintilla of evidence in support of the [non-movant’s] position
will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.
III.
Analysis
A.
Age Discrimination Under the ADEA (Count I)3
Plaintiff brings a claim against PCH for unlawful termination in violation of the ADEA.
3
Plaintiff purports to bring his ADEA claim under both a disparate treatment and a disparate impact
theory. [137 (Second Amended Complaint), at ¶ 44.] “Disparate treatment occurs when an employee is
treated less favorably simply because of race, color, sex, national origin, or in our case, age.” E.E.O.C. v.
Francis W. Parker Sch., 41 F.3d 1073, 1076 (7th Cir. 1994). “Disparate impact is the result of more
subtle practices, which on their face are neutral in their treatment of different groups but which in fact fall
more harshly on one group than another.” Id. However, Plaintiff’s disparate impact theory fails because
he has not identified “the specific employment practices” that allegedly have an adverse impact on older
employees. Smith v. City of Jackson, Miss., 544 U.S. 228, 241 (2005) (citation and internal quotation
marks omitted). Thus, the Court will focus on Plaintiff’s disparate treatment theory.
16
The ADEA prohibits an employer from discriminating against an individual on the basis of his or
her age. Pitasi v. Gartner Grp., Inc., 184 F.3d 709, 714 (7th Cir. 1999); see also 29 U.S.C.
§ 623(a) (“It is unlawful for an employer * * * to discharge any individual * * * because of such
individual’s age.”). A plaintiff employee may prevail on an age discrimination claim if he can
show that his termination would not have occurred “but for” his employer’s age-based
discriminatory motive. Pitasi, 184 F.3d at 714. The Seventh Circuit recently jettisoned the longstanding practice of distinguishing between the “direct” and “indirect” methods of analyzing
discrimination claims. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 763–66 (7th Cir. 2016).
Ortiz instructs courts to simply ask “whether the evidence would permit a reasonable factfinder
to conclude that the plaintiff’s * * * proscribed factor caused the discharge[.]” Id. at 765. The
Court is to consider the evidence as a whole, rather than asking whether any particular piece of
evidence proves the case by itself. Id.
Ortiz did not, however, alter the burden-shifting framework set forth in McDonnell
Douglas v. Green, 411 U.S. 792, 802–04 (1973). Id. at 766. Rather, Ortiz makes clear that
“McDonnell Douglas is not the only way to assess circumstantial evidence of discrimination.”
David v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017); Zegarra
v. John Crane, Inc., 2016 WL 6432587, at *10 (N.D. Ill. Oct. 31, 2016) (“[T]he pattern identified
in McDonnell Douglas is just one way that the record evidence could enable a reasonable juror to
find discrimination.”). Because the McDonnell Douglas framework survives Ortiz and because
the parties have presented their arguments in those terms,4 the Court will first assess Plaintiff’s
claim under McDonnell Douglas. The Court will then “assess cumulatively all the evidence
presented by [Plaintiff] to determine whether it permits a reasonable factfinder to determine that
4
Defendants filed their motion for summary judgment on May 6, 2016, and Plaintiff filed his crossmotion for summary judgment on August 18, 2016, one day prior to the Seventh Circuit issuing its
opinion in Ortiz, 834 F.3d 760, on August 19, 2016.
17
[his termination] was attributable to [his] age.” David, 846 F.3d at 224; see also Smart v. DHL
Express (USA), Inc., 2017 WL 449178, at *3 (N.D. Ill. Feb. 2, 2017).
1.
McDonnell Douglas
Under the burden-shifting framework of McDonnell Douglas, a plaintiff must first state a
prima facie case of discrimination by demonstrating, by a preponderance of the evidence, that:
(1) he is a member of a protected class; (2) at the time of termination, he was meeting his
employer’s legitimate employment expectations; (3) he suffered an adverse employment action;
and (4) he was treated less favorably than younger employees who are “similarly situated.”
Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002). Once Plaintiff establishes a
prima facie case of age discrimination, the burden shifts to the employer to articulate “a
legitimate, non-discriminatory reason for the employee’s termination.” Id. “An employer that
has proffered a legitimate, non-discriminatory reason for the discharge is entitled to summary
judgment unless the plaintiff presents evidence that the proffered reasons are pretexts for
discrimination.” Collier v. Budd Co., 66 F.3d 886, 889 (7th Cir. 1995).
Here, it is undisputed that Plaintiff was a member of the protected class of employees “at
least 40 years of age,” 29 U.S.C. § 631(a), at the time of his termination and that he suffered an
adverse employment action. Nevertheless, Defendants argue that Plaintiff is otherwise unable to
state a prima facie case of age discrimination. First, Defendants argue that Plaintiff was not
meeting his employer’s legitimate employment expectations. Second, Defendants argue that
Plaintiff cannot point to a similarly situated comparator who was treated more favorably.
a.
Employment Expectations
The record is replete with evidence of Plaintiff’s repeated performance problems. These
problems began as early as November 2008, when Defendant Lash questioned Plaintiff about the
18
completeness of the electrical equipment database, including the accuracy of the preventative
maintenance tasks listed, and Plaintiff agreed to make improvements in these areas. [148, at
¶ 38.] Plaintiff was again reprimanded for his poor performance involving the electrical database
during his performance review in September 2010. [168, Exhibit 23 (September 30, 2010
Management Performance Appraisal).] On December 30, 2010, Defendant Lash told Plaintiff
that he was still not satisfied with his progress on the electrical equipment database and gave
Plaintiff thirty days to bring the database into full compliance. [148, at ¶ 40; 148, Exhibit B1
(December 30, 2010 File Memo).] On February 4, 2011, Defendant Lash issued Plaintiff a
Corrective Action Form indicating that Plaintiff had failed to fulfill his job duties related to the
electrical database. [148, Exhibit A7.] Finally, on March 8, 2011, Defendant Lash informed
Plaintiff that there were still areas of the database that required additional work in order to meet
department and Joint Commission requirements. [Id. at ¶ 46; 168, at Exhibit 29.] See Biolchini
v. Gen. Elec. Co., 167 F.3d 1151, 1154 (7th Cir. 1999) (plaintiff was unable to show that he was
meeting his employer’s legitimate job expectations where the record clearly showed that human
resources had received complaints about plaintiff); cf. Wohl v. Spectrum Mfg., Inc., 94 F.3d 353,
358 (7th Cir. 1996) (plaintiff established that he met employer’s legitimate expectations where
employer gave plaintiff a substantial raise just before he was fired and employer provided no
documentary evidence that plaintiff did not meet its legitimate expectations).
Plaintiff argues that the fact that he worked at PCH for eight years should give rise to an
inference that he performed satisfactorily, citing Heinze v. S. Illinois Healthcare, 2010 WL
276722, at *3 (S.D. Ill. Jan. 19, 2010). However, Plaintiff misconstrues Heinze, which held that
a plaintiff’s allegations that she is over fifty years old, “that she worked for [the defendant
employer] for approximately eight years (giving rise to an inference that she performed her job
19
satisfactorily),” and that she was terminated and replaced by a less-qualified, younger employee,
were adequate to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim. Id.
Heinze, which is not binding on this Court, does not stand for the proposition that Plaintiff’s
eight year tenure at PCH, standing alone, is sufficient to prove by a preponderance of the
evidence that at the time of termination, he was meeting his employer’s legitimate employment
expectations.
Next, Plaintiff argues that his own testimony establishes that he excelled in his position.
He contends that he should not have been given the February 2011 Corrective Action Form
because Defendant Lash’s merger of the databases “sabotaged [Plaintiff’s] work that was
otherwise completed.”
[169, at 8.]
Plaintiff also emphasizes that he completed the tasks
assigned to him in March 2011. Plaintiff’s arguments fail for several reasons. First, Plaintiff’s
own general averments of adequate performance are insufficient to create a factual issue to
defeat summary judgment. Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 378 (7th Cir.
1995). Thus, Plaintiff does not raise a material issue of fact on the question of the quality of his
work merely by challenging the judgment of his superiors. Huhn, 718 F.2d at 244; see also
Fortier v. Ameritech Mobile Commc’ns, Inc., 161 F.3d 1106, 1114 (7th Cir. 1998) (explaining
that plaintiff’s subjective self-appraisal cannot create a genuine issue of fact regarding the
honesty of employer’s assessment of his performance); Gustovich v. AT & T Communications,
Inc., 972 F.2d 845, 848 (7th Cir. 1992) (noting that “[a]n employee’s self-serving statements
about his ability” are insufficient to contradict an employer’s negative evaluation).
Turning to Plaintiff’s more specific challenges to his employer’s claim of deficient
performance, Plaintiff only challenges the February 2011 Corrective Action Form and not the
negative performance reviews he received in September 2010, December 2010, and March 2011.
20
Although Plaintiff argues that he only received the February 2011 Corrective Action Form
because of the merging of the two databases, Defendant Lash advised Plaintiff that deficiencies
caused by the merging of the two databases were not held against him. [148, at ¶ 43; 168, at
¶ 44.] Defendant Lash also pointed out other parts of the database assignment that Plaintiff still
had not completed by February 2011, including setting up correct preventative maintenance
procedures on electrical infrastructure equipment and updating the emergency procedures. [148,
Exhibit A8 (February 4, 2011 File Memo).] Further, even assuming that Plaintiff did complete
the database updating assignment by March 2011, this does not change the fact that Plaintiff had
been given several extensions on his deadline for this assignment since as early as 2008 and had
missed numerous previous deadlines, as demonstrated by the documentary evidence.
Finally, Plaintiff argues that it was not his job to update the electrical database and that
rather, it was Defendant Lash’s job to do so. However, this argument fails because Plaintiff
conceded that as his supervisor, Defendant Lash could delegate work to him and was responsible
for ensuring that he performed the work assigned to him. [148, at ¶ 34; 168, at ¶ 34.] Plaintiff
further admitted that Defendant Lash delegated to Plaintiff the responsibility of maintaining the
electrical equipment database. [168, at ¶ 35.] Plaintiff’s email to Defendant Lash stating his
belief that maintaining the database and establishing maintenance procedures was a “job level
above [his],” [168, Exhibit 24], does not create a genuine issue of material fact about whether
Plaintiff’s employer expected him to fulfill these responsibilities. See Wohl v. Spectrum Mfg.,
Inc., 94 F.3d 353, 359 (7th Cir. 1996) (Bauer, J., dissenting) (“There is simply no way of
stretching a statement, ‘I didn’t do what the company expected but it wasn’t my fault,’ into an
age discrimination claim.”). Further, Plaintiff’s allegation that it was not his job to maintain the
database is blatantly contradicted by his February 4, 2011 email to Defendant Lash asking for a
21
promotion. In this email, Plaintiff acknowledges that it was his responsibility to ensure the
accuracy of the electrical database and maintenance procedures and asserts that he has been
working on both the equipment database and the panel database. [168, Exhibit 24.] Thus,
Plaintiff’s unsupported assertions that any deficiencies in the database were Defendant Lash’s
responsibility and that he was performing his job satisfactorily are contradicted by the record
evidence and hold no weight. See Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir.
2004) (“[S]elf-serving statements contained in an affidavit will not defeat a motion for summary
judgment when those statements are without factual support in the record.” (citation and internal
quotation marks omitted)).
Finally, to the extent that Plaintiff argues that Defendant Lash gave him assignments that
were impossible to complete, this argument fails because the ADEA was not intended to serve as
“a vehicle for judicial review of business decisions.” Huhn v. Koehring Co., 718 F.2d 239, 244
(7th Cir. 1983). As long as the employer’s expectations are reasonable and the employer makes
the employee aware of its expectations, the Court will not inquire into Defendants’ method of
conducting its business. Id.; see also Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1180 (7th Cir.
1997) (explaining that an employer’s expectations are “legitimate” as long as they are “bona
fide” and not “phony,” “for it is no business of a court in a discrimination case to decide whether
an employer demands ‘too much’ of his workers”). Thus, Plaintiff has not demonstrated that he
was meeting his employer’s legitimate employment expectations, and he has not established a
prima facie case of age discrimination under McDonnell Douglas.
b.
Similarly Situated Comparator
Even assuming that Plaintiff had established that he met his employer’s legitimate
expectations, he fails to establish a prima facie case because Plaintiff cannot point to a similarly
22
situated comparator who was treated more favorably. A plaintiff may demonstrate that another
employee is “similarly situated” to him by “show[ing] that there is someone who is directly
comparable to [him] in all material respects.” Peele, 288 F.3d at 326 (citation and internal
quotation marks omitted). The “analysis calls for a ‘flexible common sense’ examination of all
relevant factors.” Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012). The purpose of the
inquiry “is to eliminate other possible explanatory variables, ‘such as differing roles,
performance histories, or decision-making personnel, which helps isolate the critical independent
variable’—discriminatory animus.” Id. (citation omitted).
In determining whether employees are similarly situated, “a court must look at all
relevant factors, the number of which depends on the context of the case.” Id. (citation and
internal quotation marks omitted). Relevant factors include whether the comparators held the
same job description, were subject to the same standards, were subordinate to the same
supervisor, had comparable experience, education, and other qualifications, and engaged in
similar conduct without such differentiating or mitigating circumstances as would distinguish
their conduct or the employer’s treatment of them. See David, 846 F.3d at 226; Coleman 667
F.3d at 847. Importantly, “[a]n employee who does not have a similar disciplinary history and
performance record as the plaintiff is not similarly situated.” Simpson v. Franciscan All., Inc.,
827 F.3d 656, 662 (7th Cir. 2016); accord Amrhein v. Health Care Serv. Corp., 546 F.3d 854,
860 (7th Cir. 2008); Smart, 2017 WL 449178, at *3; Harris v. Office of the Chief Judge of the
Circuit Court of Cook Cty., 2016 WL 7228703, at *3 (7th Cir. Dec. 13, 2016).
Plaintiff argues that three younger, similarly situated employees were treated more
favorably: Rich Chapan, Ken Lash (a Defendant in this case), and Joseph Stroner. The Court
will address each alleged comparator in turn. First, Plaintiff, who was fifty-nine at the time of
23
termination, argues that Rich Chapan, who was thirty-nine at the time of Plaintiff’s termination,
was neither disciplined nor fired “under the exact same course of events.” [169, at 9–10.]
Chapan position at PCH is Chief Operating Engineer, and he reports to Tony Maillero, Manager
of Plant Engineering. [148, at ¶ 6.] Plaintiff contends that Chapan is similarly situated to
Plaintiff because they were both instructed to enter information for several hundred pieces of
equipment into electrical databases.
Additionally, Plaintiff contends that they were both
electrical supervisors, reported to managers, were subordinate to Vice President Baron, dressed
business casual, received “Management Performance Appraisals,” and attended bi-weekly
meetings with all managers and supervisors.
The Court concludes that Chapan is not similarly situated to Plaintiff for several reasons.
Chapan held a different position in a different department than Plaintiff: Chapan is Chief
Operating Engineer in the Plant Engineering Department, and Plaintiff’s position was Electrical
Department Supervisor in the Clinical Engineering Department. Further, Chapan reported to a
different manager than Plaintiff (Chapan reported to Tony Maillero, and Plaintiff reported to
Defendant Lash), worked in a lower pay grade than Plaintiff, and is paid on an hourly basis,
whereas Plaintiff was paid a salary. [148, at ¶ 58.] Finally, Chapan completed his electrical
database assignment, whereas Plaintiff failed to adequately complete his database assignment, as
evidenced by multiple documents in the record. Chapan testified in his deposition that he could
not recall what the deadline was for his database assignment, if there was one, but that he did
know that if he did not complete the assignment, he would be subject to discipline. [168, Exhibit
33 (Rich Chapan Deposition), 63:7–11.] Plaintiff does not allege that he has any personal
knowledge of Chapan’s disciplinary history or performance record at PCH. Thus, Chapan is not
a similarly situated comparator.
24
Next, Plaintiff argues that Defendant Lash, who was forty-six at the time of Plaintiff’s
termination, is a similarly situated comparator.
Plaintiff contends that they were both
subordinate to Baron, that Defendant Lash failed to meet Baron’s instructions to bring the
electrical database into full compliance and was not terminated, and that Defendant Lash stole
from the hospital but was not terminated. This argument also fails. Plaintiff and Defendant Lash
hold different positions, as Defendant Lash was Plaintiff’s supervisor. Ordinarily, a plaintiff is
not similarly situated to another employee when the plaintiff is subordinate to that employee.
Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 366 (7th Cir. 2009). Although courts have
held that in extraordinary cases where there are enough common factors to allow for a
meaningful comparison, a supervisor can serve as a similarly situated comparator, see Jones v. B
& J Rocket Am., Inc., 148 F. Supp. 3d 755, 768 (N.D. Ind. 2015), there are no common factors
supporting Plaintiff’s argument in this case. Plaintiff alleges that Defendant Lash is similarly
situated because he also failed to update the electrical database, but Plaintiff admits that
Defendant Lash delegated this task to Plaintiff. Thus, Plaintiff’s own failure to complete his
assignment is the reason for Defendant Lash’s failure to meet Baron’s instructions to bring the
electrical database into full compliance. Finally, Defendant Lash’s alleged theft does not provide
for a valid comparison, as Plaintiff was allegedly terminated because of his poor performance,
not because of similar misconduct. See Cole, 667 F.3d at 850 (explaining that the similarly
situated inquiry often hinges on whether co-workers engaged in comparable rule or policy
violations and received more lenient discipline).
Finally, Plaintiff argues that Joseph Stroner is a similarly situated comparator. Stroner
was thirty-three at the time of Plaintiff’s termination and was a Safety Officer in the Performance
Improvement Department of PCH. [148, at ¶ 6.] Plaintiff contends that Stroner is similarly
25
situated because he was also subordinate to Baron.
Plaintiff alleges that Stroner was not
disciplined under “identical if not more egregious conduct.” [169, at 14.] Plaintiff contends that
the Joint Commission found violations on fire extinguishers that Stroner was responsible for
inspecting, yet Stroner was not disciplined. [Id.] Again, Plaintiff’s argument fails. Plaintiff and
Stroner did not work in the same department, did not hold the same position, did not report to the
same supervisor, and did not have similar responsibilities.
See David, 846 F.3d at 227
(employees not similarly situated where their core duties of their positions did not align). Thus,
Plaintiff has not established that a younger, similarly situated comparator received more
favorable treatment and has therefore failed to establish a prima facie case of age discrimination.
c.
Pretext
Even if Plaintiff had established a prima facie case, he fails to offer evidence to
demonstrate a triable issue of fact on whether Defendants’ proffered reason for terminating
Plaintiff—his poor job performance and repeated failure to update the electrical database—was
pretextual. To show pretext, a plaintiff must show that “(a) the employer’s nondiscriminatory
reason was dishonest; and (b) the employer’s true reason was based on a discriminatory intent.”
Perez v. Illinois, 488 F.3d 773, 777 (7th Cir. 2007). “The question is not whether the employer’s
stated reason was inaccurate or unfair, but whether the employer honestly believed the reason it
has offered to explain the discharge.” O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th
Cir. 2011); see also Coleman, 667 F.3d at 852 (“It is not the court’s concern that an employer
may be wrong about its employee’s performance, or may be too hard on its employee.”). The
“only question is whether the employer’s proffered reason was pretextual, meaning that it was a
lie.” Coleman, 667 F.3d at 852. “Where, as here, the employer contends that the plaintiff’s job
performance was wanting, the plaintiff must do more than dispute the validity of the employer’s
26
criticisms.” O’Leary, 657 F.3d at 635. Rather, the plaintiff must “identify such weaknesses,
implausibilities, inconsistencies, or contradictions” in asserted reason such “that a reasonable
person could find [it] unworthy of credence.” Coleman, 667 F.3d at 852. The plaintiff must also
“provide evidence of at least an inference that the real reason for [the adverse employment
action] was discriminatory.” Perez, 488 F.3d at 778 (alteration in original) (citation and internal
quotation marks omitted).
Here, Plaintiff again relies on his own disagreement with his employer’s assessment of
his performance. However, this is insufficient to show pretext. See Silverman v. Bd. of Educ. of
City of Chicago, 637 F.3d 729, 738 (7th Cir. 2011), overruled on other grounds by Ortiz, 834
F.3d 760, (“If such disagreements were enough to avoid summary judgment and go to trial on an
indirect proof case, summary judgment would become extinct and employer’s evaluations of
employees would be supplanted by federal juries’ evaluations.”). Plaintiff argues that contrary to
Defendant Lash’s assertion that his spot-check of Plaintiff’s database work in March 2011
revealed an error rate of over 50%, the error-rate was actually 2.67%. However, Plaintiff cites to
no evidence to support this assertion, and he does not allege that Defendant Lash did not actually
believe that Plaintiff’s error rate was over 50%. See Russell v. Acme-Evans Co., 51 F.3d 64, 69
(7th Cir. 1995) (affirming summary judgment for employer and noting that in evaluating pretext,
the issue was not the adequacy in fact of the plaintiff’s performance, but the honesty of the
company’s belief that it was inadequate, and thus the plaintiff’s own opinion that his
performance was adequate was not enough to defeat summary judgment).
Plaintiff argues that his work was sabotaged by Defendant Lash and Baron when the
panel database was merged into the equipment database. However, Defendant Lash advised
Plaintiff that deficiencies caused by the merging of the two databases were not held against
27
him—and even if that testimony were not credited, Defendant Lash found other deficiencies in
Plaintiff’s work, including setting up correct preventative maintenance procedures on electrical
infrastructure equipment and updating the emergency procedures. [148, Exhibit A8 (February 4,
2011 File Memo).] Plaintiff also relies on the allegedly similarly situated comparators to show
pretext, but as discussed above, Chapan, Defendant Lash, and Stroner are not similarly situated
to Plaintiff. Thus, Plaintiff fails to offer evidence to demonstrate a triable issue of fact on
whether Defendants’ proffered reason for terminating Plaintiff was pretextual.
2.
Cumulative Assessment of All Evidence
Consistent with Ortiz, the Court will assess cumulatively all of the evidence presented by
Plaintiff without the assistance of the McDonnell Douglas paradigm to evaluate whether a
reasonable factfinder could conclude that Plaintiff was terminated because of his age. See
David, 846 F.3d at 224; Smart, 2017 WL 449178, at *3. Taking a step back and viewing the
evidence as a whole, in the light most favorable to Plaintiff, the Court concludes that Plaintiff has
failed to set forth specific facts showing a genuine issue for trial on his age discrimination claim.
Viewing the evidence in the light most favorable to Plaintiff, Defendant Lash asked
Plaintiff to work on updating the electrical database as early as 2008. [148, at ¶ 37.] Plaintiff
was asked to improve on this task in his September 2010 Management Performance Appraisal.
[148, Exhibit A5.] In December 2010, Plaintiff was given a thirty day deadline to complete the
assignment, but the requirements of the assignment changed in January 2011 when the panel
database was merged into the equipment database.
Defendant Lash told Plaintiff that any
deficiencies caused by the merging of the two databases were not held against him. Plaintiff
emailed Defendant Lash in February 2011, acknowledging that he had been working on the
equipment database and the panel database, but stating that he believed this to be a job level
28
above his, and asking for a promotion and a salary increase. [168, Exhibit 24.] Defendant Lash
issued Plaintiff a corrective action form in February 2011, explaining the still-existing
deficiencies in his work and giving him a new deadline of February 21, 2011. On March 8,
2011, Defendant Lash found that areas of the database still required additional work to meet
department and Joint Commission requirements and gave Plaintiff yet another deadline of March
25, 2011.
Plaintiff was terminated on April 8, 2011, when he was fifty-nine years old. Defendants
allege that Plaintiff was terminated from PCH because of his failure to fulfill his job duties
relating to the electrical database. Plaintiff asserts that the real reason for his termination was
age discrimination, but he offers no evidence that anyone at PCH bore animus toward him due to
his age or that his termination resulted from such alleged animus. See Zegarra, 2016 WL
6432587, at *10 (granting employer’s motion for summary judgment where “[o]ther than his
subjective beliefs, [plaintiff] adduces no direct or circumstantial evidence that anyone at
[defendant employer], much less anyone with decisionmaking authority over his employment,
bore racial, color-based, or national origin-based animus toward him”). Based on these facts, no
reasonable factfinder could conclude that Plaintiff was terminated because of his age.
Plaintiff argues that Defendant Lash intentionally set him up for failure and created
impossible deadlines by adding sixteen “new job tasks” between January 2011 and March 16,
2011. However, Plaintiff’s allegations about these “new” job tasks are contradicted by evidence
in the record. For example, Plaintiff alleges that on February 4, 2011, he was given the “new
task” of completing the infrared scanning maintenance routine. [168, at ¶ 11(c).] However,
Plaintiff’s December 30, 2010 email to Defendant Lash acknowledges that infrared scanning was
already within the scope of Plaintiff’s responsibilities, and thus was not a new task added to
29
Plaintiff’s workload shortly before his termination. [See 168, Exhibit 16 (December 30, 2010
Email).] Plaintiff also alleges that on March 4, 2011, he was assigned the additional task of
updating emergency procedures. [168, at ¶ 11(d).] However, the record indicates that Defendant
Lash assigned this task to Plaintiff as early as December 30, 2010. [148, Exhibit A8 (February 4,
2011 File Memo).]
Plaintiff further alleges that on March 8, 2011, Defendant Lash added the additional task
of requiring Plaintiff to retroactively add to the database major events and repairs for new
electrical equipment. However, this appears to be a suggestion for improvement on one of
Plaintiff’s pre-existing assignments, rather than a new task. Defendant Lash’s March 8, 2011
memo to Plaintiff explains that since Plaintiff delayed in entering the new electrical
infrastructure equipment into the database, significant history information was missing from the
database, which is why Defendant Lash asked Plaintiff to add major events and repairs from the
past year into the database. [168, Exhibit 29 (March 8, 2011 Memo).] Further, Defendant Lash
asked Plaintiff to “to verify the accuracy of the electrical equipment database and service
histories, including entering incoming inspections promptly and completely” as early as
September 30, 2010.
[168, Exhibit 23 (September 30, 2010 Management Performance
Appraisal).] Thus, Plaintiff’s allegation that Defendant Lash set him up for failure by adding
these “new” job tasks is supported only by Plaintiff’s self-serving unsworn declaration5 [168,
Exhibit 2] and contradicted by documentary evidence in the record. An unsworn declaration
supported by facts in the record can create a genuine issue of material fact to defeat summary
judgment. Nedzvekas v. LTV Copperweld, 356 F. Supp. 2d 904, 908 (N.D. Ill. 2005). But
“Under 28 U.S.C. § 1746, an unsworn declaration which is dated and signed by the declarant under the
penalty of perjury, has the same force and effect as a sworn affidavit for the purposes of any requirement
imposed by any federal rule or regulation.” Davis v. Frapolly, 756 F. Supp. 1065, 1067 (N.D. Ill. 1991).
5
30
“[s]elf-serving statements contained in an affidavit [or an unsworn declaration] will not defeat a
motion for summary judgment when those statements are without factual support in the record.”
Id. (citation and internal quotation marks omitted).
Additionally, it is not within the purview of the Court to decide whether the assignments
given to Plaintiff were unfair or overly burdensome. The Court will not “sit as a super-personnel
department that reexamines an entity’s business decisions.”
Kralman v. Illinois Dep’t of
Veterans’ Affairs, 23 F.3d 150, 156 (7th Cir. 1994) (citation and internal quotation marks
omitted).
The question before this Court is not whether Defendants’ stated reason for
terminating Plaintiff was inaccurate or unfair; rather, it is whether Defendants honestly believed
that Plaintiff had repeatedly failed to fulfill his duties related to the electrical database. See
Coleman, 667 F.3d at 852 (“It is not the court’s concern that an employer may be * * * too hard
on its employee.”); Bienkowski v. American Airlines, 851 F.2d 1503, 1508 (5th Cir. 1988) (“The
ADEA cannot protect older employees from erroneous or even arbitrary personnel decisions, but
only from decisions which are unlawfully motivated.”). Plaintiff has not provided any evidence
indicating that Defendants did not honestly believe that Plaintiff had work performance issues or
that Defendants terminated Plaintiff because of age-related animus.
Finally, Plaintiff argues that Baron’s February 3, 2011 review of Defendant Lash
incorrectly indicates that in September 2010 Defendant Lash gave Plaintiff a three month
deadline to complete preventative maintenance on critical utility equipment. [See 148, Exhibit
D6.]
First of all, Plaintiff makes this argument in his response to Defendants’ Rule 56.1
statement of facts, which is improper. Thus, the Court need not consider this argument. See
L.R. 56.1(a), 56.1(b)(3)(B); see also Malec, 191 F.R.D. at 584; Moore-Fotso, 2016 WL 5476235,
at *2. Further, this argument also fails on the merits. Although Plaintiff is correct that his
31
September 30, 2010 Management Performance Appraisal did not contain a specific deadline for
this assignment and Defendant Lash testified in his deposition that he did not give Plaintiff a
specific deadline for this assignment, [148, Exhibit B (Lash Deposition), 146:14–147:3], this is
not enough to create a genuine issue of material fact for trial. Baron’s error about a deadline
does not give rise to an inference of age discrimination, as Plaintiff fails to offer any evidence
that this error has even an arguable connection to his age. And the error in Baron’s memo does
not change the fact that Plaintiff had been reprimanded several times for failing to meet his
actual deadlines for the database assignment. Defendant Lash also testified that although he did
not set a specific deadline during Plaintiff’s September review, Plaintiff’s work on the project
was already late at that time. [Id.]
Therefore, based on a cumulative assessment of all of the evidence, viewed in the light
most favorable to Plaintiff, no reasonable juror could conclude that Plaintiff was terminated
because of his age, and the Court grants summary judgment in favor of Defendants on Plaintiff’s
age discrimination claim (Count I).
B.
Unlawful Retaliation (Count II)
Plaintiff also brings a claim against PCH for unlawful retaliation in violation of the
ADEA, 29 U.S.C. § 623(d).
Although the Court granted summary judgment in favor of
Defendants on Plaintiff’s underlying age discrimination claim, the viability of his retaliation
claim does not turn on the success of his discrimination claim. Horwitz v. Bd. of Educ. of Avoca
Sch. Dist. No. 37, 260 F.3d 602, 612 (7th Cir. 2001). To prove his unlawful retaliation claim,
Plaintiff must show that: (1) he engaged in statutorily protected activity; (2) he suffered an
adverse employment action; and (3) there is a causal connection between the protected activity
and the adverse action. Id. The parties do not dispute that Plaintiff’s filing his EEOC charge
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was protected activity or that Plaintiff was terminated.6 Thus, this issue turns on whether
Plaintiff can establish a causal connection.
Plaintiff argues that the “suspicious timing” of his termination is evidence of causation,
since he filed his EEOC charge on or about March 28, 2011, PCH received Plaintiff’s first EEOC
charge on April 4, 2011, and Plaintiff was terminated on April 8, 2011. However, “suspicious
timing alone rarely is sufficient to create a triable issue.” Tomanovich, 457 F.3d at 665 (citation
and internal quotation marks omitted); see also Wyninger v. New Venture Gear, Inc., 361 F.3d
965, 981 (7th Cir. 2004) (“[I]t is clear that ‘mere temporal proximity’ is not enough to establish a
genuine issue of material fact.” (citation omitted)); cf. Frey v. Coleman, 141 F. Supp. 3d 873,
884 (N.D. Ill. 2015) (plaintiff provided sufficient circumstantial evidence to establish causation
in a retaliatory discharge case where she relied not only on the timing of her termination, but also
on the employer’s admitted use of pretext to justify the termination). “Speculation based on
suspicious timing alone * * * does not support a reasonable inference of retaliation; instead,
plaintiffs must produce facts which somehow tie the adverse decision to the plaintiffs’ protected
actions.” Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000).
Plaintiff has not presented any additional circumstantial evidence beyond the temporal
relation between his EEOC charge and his termination that might support a causal link between
the two. In fact, the circumstantial evidence points in the other direction. It is undisputed that
Although Plaintiff’s complaint about age discrimination to the Human Resources Department in
February 2011 would qualify as protected activity, see Malin v. Hospira, Inc., 762 F.3d 552, 558 (7th Cir.
2014), Plaintiff does not pursue an argument related to this complaint, and he does not set forth any
evidence indicating that Defendant Lash or Baron knew about his complaint to Human Resources. It is
undisputed that Plaintiff told Defendant Lash only that he was going to complain to Human Resources
that Chapan was not disciplined for database deficiencies and that Plaintiff said nothing about age
discrimination. [148, at ¶ 54; 168, at ¶ 54.] See Tomanovich v. City of Indianapolis, 457 F.3d 656, 663
(7th Cir. 2006) (“Merely complaining in general terms of discrimination or harassment, without
indicating a connection to a protected class or providing facts sufficient to create that inference, is
insufficient [to state a claim for retaliation].”).
6
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Defendant Lash did not know about Plaintiff’s EEOC charge until after Plaintiff was terminated,
[148, ¶ 65], and thus could not have recommended Plaintiff’s termination as retaliation. See
Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 658 (7th Cir. 2012) (“An employer must
have actual knowledge of the employee’s protected activity to state a claim for retaliation.”).
Baron admits that he knew about Plaintiff’s EEOC charge before Plaintiff’s termination, but
Plaintiff does not produce any evidence showing a causal connection. Plaintiff argues that Baron
and Defendant Lash did not discuss the results of Defendant Lash’s spot-check with him and
thus the reason for Plaintiff’s termination could not have been the alleged database deficiencies.
However, as discussed above, the record is replete with evidence of Plaintiff’s repeated
performance problems and Defendant Lash’s repeated discussions with Plaintiff about these
problems. Thus, Plaintiff offers no reason to believe—let alone any evidence establishing—that
Baron agreed with Defendant Lash’s recommendation to terminate Plaintiff because of
Plaintiff’s EEOC charge.
Additionally, even if Plaintiff had presented circumstantial evidence of a retaliatory
motive to establish a prima facie case, Defendants have offered a nondiscriminatory reason for
Plaintiff’s discharge—his poor performance and repeated failure to complete his database
assignment—and Plaintiff has not demonstrated that there exists a trial issue of material fact on
the question of pretext, as discussed above. See Lord v. High Voltage Software, Inc., 839 F.3d
556, 564 (7th Cir. 2016). Thus, the record does not contain sufficient evidence to permit a
reasonable factfinder to conclude that a retaliatory motive caused Plaintiff’s charge, and
Defendants are entitled to summary judgment on Plaintiff’s unlawful retaliation claim.
C.
State Law Claims
Given the foregoing conclusion that Defendants are entitled to summary judgment on
34
both of Plaintiff’s federal claims, the Court must consider whether to exercise its supplemental
jurisdiction over Plaintiff’s remaining state law claims. Where a district court has original
jurisdiction over some claims, it has supplemental jurisdiction over other claims that are so
related that they form part of the same case or controversy. 28 U.S.C. § 1367(a); Miller v.
Herman, 600 F.3d 726, 738 (7th Cir. 2010). If the court has dismissed all claims over which it
has original jurisdiction, the court’s supplemental jurisdiction persists, but the court has
discretion to decline to exercise supplemental jurisdiction. 28 U.S.C. § 1367(c)(3); Miller, 600
F.3d at 738 (noting that the decision whether to exercise supplemental jurisdiction is “squarely
within [the district court’s] discretion”). As the Seventh Circuit consistently has stated, “it is the
well-established law of this circuit that the usual practice is to dismiss without prejudice state
supplemental claims whenever all federal claims have been dismissed prior to trial.” Groce v.
Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999); see also Wright v. Associated Ins. Co., Inc.,
29 F.3d 1244, 1251 (7th Cir. 1994) (“When all federal claims have been dismissed prior to trial,
the principle of comity encourages federal courts to relinquish supplemental jurisdiction[.]”);
Patrick v. City of Chicago, 662 F. Supp. 2d 1039, 1068 (N.D. Ill. 2009) (granting summary
judgment in favor of defendants on federal claims and declining to exercise supplemental
jurisdiction over state law claims). Exceptions to this general rule exist:
(1) when the statute of limitations has run on the pendent claim, precluding the
filing of a separate suit in state court; (2) substantial judicial resources have
already been committed, so that sending the case to another court will cause a
substantial duplication of effort; or (3) when it is absolutely clear how the pendent
claims can be decided.
Davis v. Cook Cty., 534 F.3d 650, 654 (7th Cir. 2008) (citation and internal quotation marks
omitted).
Here, none of the exceptions applies. First, Illinois has adopted a “rule of tolling,” which
35
provides that if an action “is dismissed by a United States District Court for lack of jurisdiction,
* * * then, whether or not the time limitation for bringing such action expires during the
pendency of such action, the plaintiff * * * may commence a new action [in state court] within
one year or within the remaining period of limitation, whichever is greater, after * * * the action
is dismissed by a United States District Court for lack of jurisdiction.” 735 ILCS 5/13-217; see
also Davis, 534 F.3d at 654; White v. City of Chicago, 149 F. Supp. 3d 974, 983–84 (N.D. Ill.
2016). Second, this Court has not yet committed “substantial judicial resources” to considering
the merits of Plaintiff’s state law claims. See Davis, 534 F.3d at 654 (“the district court disposed
of the federal claims on summary judgment, and so ‘substantial judicial resources’ have not yet
been committed to the case”). Third, it is not clearly apparent how the state law claims would be
decided. In these circumstances, the usual rule applies and dictates dismissal without prejudice
of Plaintiff’s state law claims in Count III through Count X.
IV.
Conclusion
For the reasons stated above, the Court grants Defendant’s motion for summary
judgment [146] and denies Plaintiff’s cross-motion for summary judgment [167] as to Plaintiff’s
federal claims in Counts I and II. Plaintiff’s remaining state law claims in Count III through
Count X are dismissed without prejudice. The Court will enter a final judgment and close the
case.
Dated: March 8, 2017
____________________________
Robert M. Dow, Jr.
United States District Judge
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