Singer v. Lewis University et al

Filing 50

MEMORANDUM Opinion and Order: For the reasons stated above, Defendant's motion for summary judgment 33 is denied with respect to Count One (Breach of Collective Bargaining Agreement) of her complaint and granted with respect to Count Three (Age Discrimination). Status conference is set for June 7, 2016, at 9:00 a.m. Signed by the Honorable Rebecca R. Pallmeyer on 5/26/2016. Mailed notice. (mgh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LOISANN SINGER, an individual,
Plaintiff,
v.
LEWIS UNIVERSITY, a corporation,
Defendants.

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No. 14 C 7256
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff Loisann Singer was 64 years old when she began working for Defendant Lewis
University as an administrative assistant in November 2008.

She was 69 years old when

Defendant fired her in August 2013. Plaintiff asserts that Defendant terminated her employment
because of her age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29
U.S.C. § 623(a). She also asserts that Defendant breached its collective bargaining agreement
(the "CBA") with Plaintiff's local union because it terminated her employment without "just
cause." Defendant has moved for summary judgment against Plaintiff on both counts of her
complaint,1 maintaining that it discharged Plaintiff because she violated Lewis' workplace safety
policy when she threatened to bring a gun to work. Defendant insists, therefore, that it had just
cause to fire Plaintiff and that her termination had nothing to do with her age. For the reasons
discussed below, Defendant's motion [33] is granted in part and denied in part.
BACKGROUND
On August 7, 2013, Plaintiff met with Lori Misheck, Director of Human Resources for
Lewis, and Sue Kovach, a union steward, to discuss Plaintiff's concerns about being "picked on
and micromanaged" at work. (Def.'s Rule 56.1 Stmt. of Mat. Facts (hereinafter "Def.'s 56.1")
[35] ¶ 48.) Plaintiff and Defendant disagree about what Plaintiff said at the meeting. Defendant

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Plaintiff voluntarily dismissed [16] a third claim that had been asserted against
her local union.

maintains that while Plaintiff was discussing her frustrations, she stated that she "understood
why a person would bring a gun to work with them." (Id. ¶ 49.) Plaintiff denies that she said
anything about a gun and insists that she actually said that she "can understand how people
snap" when they are humiliated, harassed, and bullied at work. (Pl.'s Rule 56.1 Stmt. of Mat.
Facts (hereinafter "Pl.'s 56.1") [42] ¶ 4.) Misheck states in her deposition that she responded to
Plaintiff's statement by reprimanding her, telling Plaintiff that she "cannot say that, especially in
an employment situation." (Dep. of Lori Misheck (hereinafter Misheck Dep.), Ex. H to Def.'s
56.1 [35-9], at 17:1–5.) According to Misheck, Plaintiff responded by saying "well I can," by
which Misheck understood Plaintiff to be affirming that she could understand why a person
would bring a gun to work. (Misheck Dep. 31:2–5, 34:20–24.) Regardless of what Plaintiff
actually said during her meeting with Misheck and Kovach, the parties agree that the meeting
ended cordially. (Def.'s 56.1 ¶ 54.) The following week, on August 12, 2013, Plaintiff went on
medical leave because of a stomach condition. (Dep. of Loisann Singer (hereinafter "Singer
Dep."), Ex. 1 to Pl.'s 56.1 [42-1], at 95:5–12.)
Three weeks after Plaintiff's meeting with Misheck and Kovach, while Plaintiff was still on
medical leave, Kovach contacted Graciela DuFour, Associate Vice President for Human
Resources for Lewis, to discuss Plaintiff's comments at the August 7 meeting. (Def.'s 56.1
¶ 55.) Asked about the lack of an immediate response to Plaintiff's alleged statement, Kovach
responded that after reflecting on the situation for some time, she realized that what she heard
Plaintiff say at the meeting did not "sound like something someone who's in a rational mind
should say and then repeat." (Id. ¶ 54; Dep. of Sue Kovach (hereinafter "Kovach Dep."), Ex. F
to Def.'s 56.1 [35-7], at 35:10–19.) DuFour, Kovach, and Misheck met that day, August 28, to
discuss Plaintiff's alleged statement. (Def.'s 56.1 ¶ 56.) Misheck recalls that Kovach also told
them that she had been on a conference call with Plaintiff and had heard Plaintiff make another
reference to bringing a gun to work. (Misheck Dep. 30:23–31:14.) Kovach herself denies that
she was a part of any such call. (Kovach Dep. 45:17–24.) Whether or not Kovach was on the
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conference call, DuFour recalls that another union steward named Barb Seppi told DuFour that
she was on the call and heard Plaintiff mention that she understood why a person would bring a
gun to work, but Seppi "[didn’t] think she really meant it . . . [or] meant anything by it." (Dep. of
Graciela DuFour (hereinafter "DuFour Dep."), Ex. I to Def.'s 56.1 [35-10], at 16:9–19.) Plaintiff
denies that she made such a statement to Seppi. (Singer Dep. 58:19–59:1.)
DuFour determined that Plaintiff should be discharged because her comments violated
Lewis' workplace safety policy, and DuFour made that recommendation to her supervisor
Robert De Rose, Lewis' Senior Vice President and CFO. (Def.'s 56.1 ¶¶ 60–61.) Lewis' human
resources policy manual states: "[I]t is the policy of Lewis University to expressly prohibit any
actions or threats of violence by any Lewis employee, against any other employee or student in
or about University facilities," and Lewis is committed to "take prompt and remedial action, up to
and including immediate dismissal of employment, against any employee who engages in any
threatening behavior or acts of violence or who uses any obscene, abusive, or threatening
language or gestures."

(Id. ¶¶ 5–6.)

Though Defendant points to a number of alleged

deficiencies in Plaintiff's job performance, many of which Plaintiff does not dispute (id. ¶¶ 18–
47), DuFour stated—and Defendant concedes—that Plaintiff's job performance had nothing to
do with the decision to terminate her employment (Pl.'s 56.1 ¶ 13).
DuFour sent Plaintiff an official termination letter on August 29, 2013. (Def.'s 56.1 ¶ 67.)
The letter stated that Plaintiff "repeatedly made threatening statements in violation of the
University's Workplace Safety Policy, # 6.2070." (Id.) Besides the letter, there is no other
documentation of Plaintiff's threatening statements in her personnel file. (Pl.'s 56.1 ¶ 9.)

After

her termination, Plaintiff was permitted to drive onto the Lewis University campus to retrieve her
belongings. (Pl.'s 56.1 ¶ 12.) Plaintiff's supervisors, Julie Krahl, Mary Ann Atkins, and Jana
Fast, were not informed about Plaintiff's alleged threat until after the initiation of this lawsuit, and
each of DuFour, Kovach, Seppi, Atkins, Misheck and Fast acknowledged that they never felt
threatened by or scared of Plaintiff while she worked at Lewis (Id. ¶¶ 18–19).
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Plaintiff claims that she was discriminated against on the basis of her age. She notes
that Atkins asked her in the summer of 2013 when she was going to retire (id. ¶ 15), but she
admits that Atkins' question did not offend her and was just part of "general conversation."
(Def.'s 56.1 ¶ 78.) Plaintiff also points out that in an e-mail Kovach wrote shortly after Plaintiff's
termination, Kovach described Plaintiff as the intended victim of a "witch hunt" conducted by the
"ladies in the library." (See Pl.'s 56.1 ¶ 20; Kovach Dep., Ex. 11 to Pl.'s 56.1 [42-11], at 57:19–
58:3.) The "ladies in the library" (Plaintiff's three supervisors) were not involved in Plaintiff's
termination, however. (See Pl.'s 56.1 ¶ 18.) In support of her discrimination charge, Plaintiff
identifies Rhonda Richter as a similarly situated younger worker who did not lose her job; Seppi
and Krahl agree that Richter was in her 40s at the time of Plaintiff's termination. (Def.'s 56.1 ¶
79; Pl.'s 56.1 ¶ 22.) In addition to her claim for age discrimination, Plaintiff asserts that her
termination violated the CBA between Defendant and Plaintiff's local union. Pursuant to the
CBA, Defendant may only discipline or discharge employees for "just cause." (Def.'s 56.1 ¶ 8.)
DISCUSSION
Summary judgment is appropriate where the moving party has shown that "there is no
genuine 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 when "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). In determining whether a genuine issue of material fact
exists, a court views the evidence in the light most favorable to the nonmoving party and draws
all reasonable inferences in that party's favor. Id. at 255.
I.

Age Discrimination
A plaintiff bringing an age discrimination claim may establish her claim using either the

direct or indirect methods of proof. Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695 (7th Cir.
2006). Plaintiff in this case relies solely on the indirect method, which is based on the burdenshifting approach articulated in McDonnel Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
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Under that approach, the plaintiff bears the initial burden of establishing a prima facie case of
discrimination by showing that (1) she is a member of a protected class, (2) her job performance
met her employer's legitimate expectations, (3) she suffered an adverse employment action,
and (4) a similarly situated individual outside the protected class was treated more favorably
than the plaintiff. Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). If the plaintiff
establishes her prima facie case of discrimination, the employer may articulate a legitimate,
nondiscriminatory reason for its action. Id. Once the employer articulates such a reason, the
plaintiff bears the burden of demonstrating that the reason offered by the employer is mere
pretext. Id. Evidence that the employer's stated reason is pretextual permits an inference of
unlawful discrimination. Id.
Because Plaintiff was 69 years old and was discharged from her job, there is no dispute
that she has established the first and third elements of her prima facie case. Defendant denies,
however, that Plaintiff's job performance met Defendant's legitimate expectations or that she
has identified a similarly situated employee who received more favorable treatment than she
did. The court discusses each of these elements in turn.
A.

Legitimate Expectations

According to Defendant, Plaintiff failed to meet its legitimate expectations because she
repeatedly violated Lewis' workplace safety policy by threatening to bring a gun to work.
Defendant compares this case to Alexander v. Biomerieux, Inc., 485 F. Supp. 2d 924 (N.D. Ill.
2007), in which another court in this district ruled that "[a]n employee who makes threats that
she will bring a firearm to her place of employment cannot meet her employer's legitimate
expectations of her employment." Id. at 931. The evidence of the workplace threat posed by
the plaintiff in Alexander appears to have been more significant than what Defendant has
presented in this case: In Alexander, the plaintiff told other employees, on more than one
occasion, that she would bring a gun in to work and "take care of" people. Id. at 929. In
addition, there was evidence that other employees found the plaintiff's behavior to be disturbing
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and aggressive. Id. Plaintiff in this case denies that she mentioned bringing a gun to work at
all; and even if Defendant's account of what Plaintiff said is accurate, her statement that she
"understands" why someone would bring a gun to work is different from a statement that she
would do so. A number of Plaintiff's coworkers said that they never felt scared or threatened by
Plaintiff while working with her. (Pl.'s 56.1 ¶ 19.) As explained below, however, the court
concludes Plaintiff is unable to carry her burden on the other elements of her ADEA claims, so
whether she has created an issue of material fact on the legitimate-expectations element is of
little consequence.
B.

Similarly Situated Employee

Defendant also contends that Plaintiff has failed to identify a similarly situated employee
to satisfy the fourth element of her prima facie case. Plaintiff counters that Rhonda Richter, the
younger employee who took over Plaintiff's job responsibilities, is such an employee. Once
again, Defendant relies on Alexander, where the district court ruled that the plaintiff had not
identified a similarly situated employee because she failed to establish that any other employee
had engaged in similar conduct to the plaintiff—"i.e., threatening to bring a gun to work." 485 F.
Supp. 2d at 932.

Because there is similarly no evidence that Richter made threatening

statements or otherwise violated the workplace safety policy, Defendant argues that she cannot
be considered a similarly situated employee. Plaintiff again responds that there is a disputed
issue of material fact regarding whether she threatened to bring a gun to work and that she
therefore does not have to show that Richter made any similar statement or engaged in any
similar conduct.
In circumstances such as this, where an employer's stated reason for terminating an
employee is the employee's misconduct, the plaintiff must ordinarily identify a comparator
employee who engaged in conduct similar to that alleged against the plaintiff.

See, e.g.,

Coleman v. Donahoe, 667 F.3d 835, 850 (7th Cir. 2012). A "similarly situated employee" need
not be identical to the plaintiff, but there "must be 'enough common factors . . . to allow for a
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meaningful comparison in order to divine whether intentional discrimination was at play.'" Id. at
847. "An employee who does not have a disciplinary history and performance record similar to
the plaintiff's is not 'similarly situated.'" Brown v. Wyndemere LLC, 608 F. App'x 424, 425–26
(7th Cir. 2015).

Plaintiff has presented no information about Richter apart from her age;

Richter's age alone is insufficient to allow the court to engage in a "meaningful comparison" of
the two employees. The existence of an issue of material fact concerning whether Plaintiff
actually threatened workplace violence does not excuse her from the obligation to identify
another employee who allegedly made similar comments or at least engaged in some form of
behavior that could have raised security concerns. The current record might permit a jury to
infer that Plaintiff's firing was arbitrary or unjustified, but an inference that Plaintiff was fired
because of her age would require evidence that a younger employee engaged in similar
conduct but received more favorable treatment. See Scott v. H & R Block Mortgage Corp., No.
04-C-373, 2005 WL 3542246, at *15 (E.D. Wis. Dec. 27, 2005) (requiring plaintiff to produce
evidence that another employee engaged in conduct similar to the conduct plaintiff allegedly
engaged in despite plaintiff's contention that he never engaged in any such conduct). Without
identifying a similarly situated employee, Plaintiff has failed to establish a prima facie case of
age discrimination.
C.

Pretext

Even if the court were to consider Richter as an adequate comparator and rule that
Plaintiff had presented a prima facie case of discrimination, Plaintiff's claim would still fail
because she has not demonstrated that the reason Defendant offered for firing her was a
pretext—that is, a "phony reason" that Defendant concocted to cover up its actual,
discriminatory reason. Visser v. Packer Eng'g Assoc., Inc., 924 F.2d 655, 657 (7th Cir. 1991).
Defendant has articulated a legitimate reason for firing Plaintiff: statements that Defendant
deemed a violation of the workplace safety policy. Plaintiff insists that this proposed reason is
inadequate because there exists an issue of material fact regarding whether she actually made
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any threatening statement. But Plaintiff's argument misses the point. In determining whether
the employer's statement was pretextual, "[t]he 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). Thus it does not matter whether Defendant is mistaken about what Plaintiff said or did; it
only matters whether Plaintiff has presented evidence indicating that Defendant is lying about
the reason it fired her. See Ineichen v. Ameritech, 410 F.3d 956, 961 (7th Cir. 2005).
There is some evidence in the record that suggests Defendant did not believe Plaintiff's
statement was as "threatening and ominous" as it now contends it was. (Def.'s Br. [34] at 2.)
The meeting at which Plaintiff allegedly made her threatening statement ended cordially, for
example. (Def.'s 56.1 ¶ 54). In addition, Plaintiff was allowed to continue working after the
statement and was allowed to drive onto the university campus to retrieve her belongings after
her termination (Pl.'s 56.1 ¶¶ 11–12), and Defendant never informed Plaintiff's colleagues prior
to her termination about her alleged statement or otherwise suggest to them that she posed a
threat to the workplace. (Id. ¶ 18–19.)
Nevertheless, though Defendant may not have viewed Plaintiff as truly dangerous, it has
presented evidence demonstrating that her alleged statements were the genuine reason for her
termination. Kovach, Plaintiff's union steward, testified at her deposition that she told Plaintiff
that she would have to make a note of Plaintiff's alleged statement, for example. (Kovach Dep.
at 34:12–14.) And DuFour, the individual who made the decision to terminate Plaintiff, testified
that Kovach told her that she felt she had to report Plaintiff's alleged statement because "she
would feel really terrible" if she remained silent and something happened at the university.
(DuFour Dep. at 14:5–18.) The very fact that there were a number of conversations among
upper management about Plaintiff's statement, a fact that Plaintiff does not dispute, suggests
that Defendant had a genuine belief that Plaintiff's statement was serious and warranted some
type of response. DuFour also testified that she determined that discharge was the prudent
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response to Plaintiff's "egregious" policy violation and made that recommendation to her
supervisor, additional facts that Plaintiff does not dispute. (Def.'s 56.1 ¶ 61.) Plaintiff has failed
to carry her burden to demonstrate that the reason offered by Defendant for her termination was
a phony one.
Moreover, even if the court could conclude from the evidence in the record that
Defendant's proffered reason was completely fabricated, Plaintiff's claim would still fail because
she has not provided any evidence that the true reason for Plaintiff's discharge was her age.
Cf. Benuzzi v. Bd. of Educ. of City of Chicago, 647 F.3d 652, 663-64 (7th Cir. 2011) ("Even if we
assume that [the employer] cut her accounts of every incident for which she disciplined [the
plaintiff] from whole cloth . . . there is nothing in the record that so much as hints that she did so
because of [the plaintiff's] gender."). The closest Plaintiff comes to showing anything like agebased discriminatory animus is her contention that her supervisor Atkins once asked when she
was going to retire. (Pl.'s 56.1 ¶ 15.) Atkins, however, played no role in Plaintiff's termination,
and Plaintiff admits that Atkins' question did not offend her and was just part of "general
conversation." (Def.'s 56.1 ¶ 78.) Plaintiff also argues that she was the victim of a "witch hunt."
(Pl.'s 56.1 ¶ 20–21.) But even if that were so, there is no evidence that any of the "ladies in the
library" who allegedly perpetrated the witch hunt played any role in her termination, and there is
no evidence that they did so because of her age. Thus, without pointing to any "circumstances
to support an inference that there was an improper motivation proscribed by law," Plaintiff
cannot establish that Defendant's reason for firing her was pretextual. McGowan v. Deere &
Co., 581 F.3d 575, 581 (7th Cir. 2009).
II.

Breach of the CBA
In addition to her ADEA claim, Plaintiff asserts a state-law breach-of-contract claim

against Defendant, alleging that her termination violated the CBA's provision that employees
may only be discharged for "just cause." Defendant argues that it had just cause to fire Plaintiff
because she violated the workplace safety policy. Oddly, Defendant has limited its attack on
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Plaintiff's breach-of-contract claim to an argument on the merits about whether just cause
existed.

Defendant raises no argument, for example, that Plaintiff's CBA-based claim is

preempted by federal labor law or is otherwise procedurally barred. At this late stage in the
case, the court considers Defendant to have waived any argument it has failed to raise, and so
the court will also confine its analysis to the merits issue of whether Defendant had just cause to
terminate Plaintiff's employment.

Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009)

(arguments not raised in summary judgment brief are considered waived).
Again, the court sees no evidence that Defendant was lying about its reason for firing
her to cover up a discriminatory motive.

It is much less clear, however, that Defendant's

proferred reason was a good one or that it constituted "just cause." A jury could reasonably
conclude that—as Plaintiff attests—Plaintiff never mentioned bringing a gun to work, or that
even if she did, she made no real threat of violence in doing so. The administrative law judge
(ALJ) who concluded that Plaintiff was entitled to unemployment benefits, for example, found
Plaintiff's assertion that she made no threat of violence to be credible, especially in light of the
fact that Defendant's actions did not comport with the actions of an employer who feared that its
employee posed a serious threat to the workplace. (See Administrative Law Judge's Decision,
Ex. B to Pl.'s Compl. [1-1], at 2.) Because a jury could interpret Plaintiff's alleged threat to be a
fairly innocuous comment, there is at least an issue of material fact about whether Defendant
had just cause to fire her.
Defendant cites only one Illinois case involving an alleged breach of an employment
agreement that prohibited terminating an employee other than "for cause."

See Selch v.

Columbia Mgmt., 2012 IL App (1st) 111434, ¶ 10, 977 N.E.2d 287, 290 (1st Dist. 2012). Selch,
however, is distinguishable.

In that case, the agreement at issue defined "cause" for

termination as, among other things, "engaging in misconduct that injures the Company." Id.
The court concluded that there was "no ambiguity in [the] facts" about whether the plaintiff
behaved in a way that was "insubordinate, disruptive, unruly and abusive" and that caused
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injury to the company. Id. at ¶ 47, 977 N.E.2d at 295. The record was clear that the plaintiff
had walked into a conference room where his boss and his company's chief operating officer
were sitting and proceeded to unbuckle his pants, pull them down, and "moon" the two men. Id.
at ¶ 17, 977 N.E.2d at 290. Based on these undisputed facts, it was clear that the plaintiff's
behavior had harmed the company by "undercutting the authority of plaintiff's bosses . . . and
disregarding company policies" prohibiting disruptive, unruly, and abusive behavior in the
workplace. Id. at ¶ 47, 977 N.E.2d at 295. Plaintiff's alleged misconduct in this case is far less
clear or immune from dispute. The CBA, for example, does not provide a definition of "just
cause." If the definition had been the same as that in Selch, the court is not certain it could
conclude that Plaintiff had injured Lewis as the plaintiff in Selch had injured his company. In
short, while a jury would be unable to deny that the plaintiff in Selch had "mooned" his bosses, a
jury in this case could conclude from the facts currently in the record that Plaintiff actually made
no threat to anyone and thus that there was no just cause to terminate her employment.
CONCLUSION
For the reasons stated above, Defendant's motion for summary judgment [33] is denied
with respect to Count One (Breach of Collective Bargaining Agreement) of her complaint and
granted with respect to Count Three (Age Discrimination). Status conference is set for June 7,
2016, at 9:00 a.m.
ENTER:

Dated: May 26, 2016

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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