Klein v. Newly Weds Foods, Inc.

Filing 109

MEMORANDUM Opinion and Order Discussion Signed by the Honorable Maria Valdez on 9/10/2019: Mailed notice (lp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES KLEIN,
Plaintiff,
v.
NEWLY WEDS FOODS, INC.,
Defendant.

NEWLY WEDS FOODS, INC.,
CounterPlaintiff,
v.
JAMES KLEIN,
CounterDefendant.

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No. 16 C 8035
Magistrate Judge
Maria Valdez

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MEMORANDUM OPINION AND ORDER
DISCUSSION
Plaintiff James Klein was terminated from his position as Director of
Research & Development by Defendant Newly Weds Foods, Inc. (“Newly Weds”).
Klein brought suit, alleging a violation of the Age Discrimination in Employment
Act (“ADEA”), arguing that he was terminated and immediately replaced with
several younger individuals under the guise of company reorganization. [Doc. No.

1]. Newly Weds argues that age played no role in Klein’s termination and that there
is no evidence that would support such a claim. Newly Weds asserts that Klein’s
employment ended when it was determined that the position he was deemed most
capable of filling in the reorganized department was simply not a viable position for
how Newly Weds supported its customers. Newly Weds has moved for summary
judgment. [Doc. No. 76].
Newly Weds has also filed counterclaims against Klein for breach of contract
and violation of the Illinois Trade Secret Act. [Doc. No. 43]. Klein has moved for
summary judgment [Doc. No. 95] on Newly Wed’s counterclaims, arguing that
Newly Weds has failed to establish any damages and failed to provide any evidence
that Klein used any of its documents or disclosed any of the material in controversy
to anyone but his attorney. The parties have consented to the jurisdiction of the
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons
that follow, Defendant’s Motion for Partial Summary Judgment [Doc. No. 76] is
granted and Plaintiff’s Motion for Summary Judgment on Defendant’s
Counterclaims [Doc. No. 95] is dismissed without prejudice.
BACKGROUND 1
Plaintiff Klein was hired by Defendant Newly Weds in 1997 and worked in
the Research & Development (“R&D”) department until he was terminated, at the
age of 65, in August 2015. [Pl.’s Resp. to Deft.’s SOF at ¶ 2]. At the start of 2015,
Newly Weds hired Dirk Beekman to succeed Lynn Theiss, long-time Vice President
The following facts are taken from the parties’ Local Rule 56.1 Statements (“SOF”) and
are uncontested unless otherwise noted.

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of R&D. [Deft.’s SOF at ¶ 4]. Although Klein denies that it was “widely understood”
that Beekman would reorganize the R&D department, Newly Weds asserts that one
of Beekman’s responsibilities in 2015 was to make determinations as to how to
better manage the R&D department. [Pl.’s Resp. to Deft.’s SOF at ¶¶ 4, 5]. Prior to
Newly Weds hiring Beekman, Klein had discussions with Theiss regarding the need
to improve headcount through improved workflow between the Regulatory &
Technical Information Systems (“RTIS”) Group and the rest of R&D. [Deft.’s SOF at
¶ 6].
As an initial step in the R&D reorganization, on June 29, 2015, Kendle
Gorski transitioned to the newly created position of Raw Material Information
Manager in the RTIS area of R&D. [Id. at ¶¶ 7, 10]. The Raw Material Information
Group’s function was to ensure the acquisition, assimilation, and maintenance of
accurate raw material and vendor information. [Id. at ¶ 7]. As a managerial
position, Gorski’s position was a step below Klein’s position as a director, with
Gorski’s starting salary at $80,000 and Klein’s base salary at the time being
$137,534.99. [Id. at ¶¶ 10, 11].
Three individuals who previously reported to Klein handling data were
shifted to Gorski as part of this move. [Id. at ¶ 7]. This data function had been
Klein’s responsibility from 2011-2014. [Id. at ¶ 8]. Klein agreed that it would be a
“reasonable decision of management” to have the data handled by the Raw Material
Information Group and that he did not believe that he would have been better
suited to take on those responsibilities than Gorski. [Id. at ¶ 9].

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During this time, as part of the reorganization, Beekman and Klein were
discussing having Klein focus on a new long-term innovation. [Id. at ¶ 13]. The
discussion included talks of shifting Klein’s clerical responsibilities to RTIS to free
up Klein to do other things. [Id. at ¶ 13]. Beekman and Klein continued to discuss
Klein’s expanded job duties and Klein believed that Beekman was “very positive”
toward him. [Id. at ¶ 14].
Early in the reorganization process, Beekman determined that Klein’s
strength was innovation and coming up with new ideas for the company, and Klein
agreed. [Id. at ¶ 15]. Klein and Beekman discussed a position where Klein could do
a good job working on basic, long-term research. [Id. at ¶ 19]. The parties disagree
as to what role Beekman envisioned for Klein: a singular role in innovation, or a
multi-faceted role that encompassed innovation, cost savings, and other duties.
[Pl.’s Resp. to Deft.’s SOF at ¶ 20]. Newly Weds believes the position that Beekman
envisioned played to Klein’s strength in coming up with new ideas, whereas Klein
believes that Beekman envisioned a broader role than just simple innovation. [Id. at
¶ 20].
Beekman created a Continuous Improvement Group, whose function was to
find areas of waste where money could be saved by doing things smarter. [Deft.’s
SOF at ¶ 22]. The group would focus on savings in procurement, ingredients, and
operations, including immediate manufacturing costs and savings. [Id. at ¶ 22].
Beekman selected George Kelecich, who was 52 at the time, to run this group. [Id.
at ¶ 23]. Klein alleges that he was performing the role of continuous improvement

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and cost savings as head of the “Ingredient Technology Group,” and once he was
terminated, the group was renamed the “Waste Group” and, later, the “Continuous
Improvement Group.” [Pl.’s Resp. to Deft.’s SOF at ¶ 22]. Klein alleges his job was
given to Kelecich, as were his remaining direct reports, John Schranz and Linfeng
Wang, who later performed essentially the same work under Kelecich. [Id. at ¶ 22].
Klein further alleges that he was fired and the position was given to Kelecich to
create a vacancy for Craig Lawson, a manager under Kelecich who was 40 at the
time, who was elevated to R&D Director. [Id. at ¶ 23]. Klein understood that the
Continuous Improvement Group would be working with plant operations to reduce
waste in plants. [Deft.’s SOF at ¶ 24]
Kelecich had worked for Newly Weds longer than Klein had. [Id. at ¶ 25] He
started in operations and had been a production supervisor. [Id. at ¶ 26]. After
Kelecich moved from operations to R&D, he continued to have regular interactions
on a weekly or daily basis with Newly Weds’ plant managers. [Id. at ¶ 27]. He
handled any item that involved R&D and operations that related to product
development. [Id. at ¶ 27]. Klein acknowledged that Kelecich had a great
relationship with operations, was good with people, and was strong in
administration. [Id. at ¶ 28]. Klein had never worked in operations at Newly Weds.
[Id. at ¶ 30].
In August 2015, Carol Bagley, a former Newly Weds employee, had gone to
Newly Weds to visit a friend when she bumped into Newly Weds’ owner, who asked
her if she would be interested in coming back to work for the company. [Id. at ¶ 34].

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Bagley previously worked at Newly Weds from 1988 – 1996 in a variety of roles,
including food scientist, R&D manager, regulatory compliance manager, and
financial analyst. [Id. at ¶ 33].
Bagley was interested in a position with Newly Weds and subsequently
interviewed with an HR manager. [Id. at ¶ 34]. She received a job offer and was
pretty confident that her contact with Newly Weds’ owner would result in the offer.
[Id. at ¶ 34]. As part of the Continuous Improvement Group, Beekman assigned
Bagley, who was 50 at the time, to work under Kelecich with respect to the financial
aspect of continuous improvement. [Id. at ¶ 32]. Bagley’s position was a newly
created managerial position with a salary of $80,000 – a lower position and salary
than that of Klein’s. [Id. at ¶¶ 35, 36]. While the parties agree it was a new position,
Klein alleges that Bagley’s job functions had been performed by various individuals,
including Klein himself, throughout the company’s history. [Pl.’s Resp. to Deft.’s
SOF at ¶ 36]. The parties further disagree that Bagley did not pick up any of the
projects that Klein had been handling. Klein alleges that Schranz and Wang were
immediately reassigned to Bagley following Klein’s termination and continued to
perform the same work under Bagley that they had performed under Klein. [Id. at ¶
37].
Prior to the reorganization, Kelecich had managed some of Newly Weds’
remote R&D locations. [Deft.’s SOF at ¶ 38]. Newly Weds asserts that with Kelecich
being slotted to head the Continuous Improvement Group, Beekman selected Craig
Lawson to take on the functions that Kelecich had managed involving R&D at

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plants in and outside of Chicago. [Id. at ¶ 39]. Klein disagrees, alleging that
Kelecich was reassigned to the position of Continuous Improvement Director so that
Lawson could be promoted to Kelecich’s old position – asserting that the only
difference between Lawson’s new position and Kelecich’s former position was that
Lawson was now responsible for overseeing five plants instead of four. [Pl.’s Resp. to
Deft.’s SOF at ¶ 39]. Klein had only managed one remote location for Newly Weds
during 2009 – 2010 and admitted that he was not better suited for this position
than Lawson. [Deft.’s SOF at ¶ 40].
Klein believed that Debra Polcyn had picked up some of his responsibilities
for budgeting in the reorganization, but he also noted that she had become
responsible for talent acquisition and working with universities on interns. [Id. at ¶
41]. Polcyn, who turned 60 in 2015, moved from a position involving R&D for
national chain accounts – a position that was eliminated – to becoming the director
of Technical R&D, running the R&D sensory lab and reporting directly to Beekman.
[Id. at ¶ 42].
The parties disagree as to the position that Beekman envisioned for Klein.
[Pl.’s Resp. to Deft.’s SOF at ¶ 43]. Newly Weds asserts that it became apparent to
Beekman that it would be like “pushing a giant boulder up a hill” because “95%” of
everything done at Newly Weds was customer driven. [Id. at ¶ 43]. Klein asserts
that, unbeknownst to him, as early as April 2015, Beekman had placed him on a “6
month test” and threatened to replace him; and, by June 2015, had requested
severance figures for Klein. [Id. at ¶ 43]. Klein agreed with Beekman’s

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characterization that Newly Weds is a “customer-oriented” company. [Deft.’s SOF at
¶ 44]. The parties disagree that, as the reorganization progressed, the feedback
from Vice Presidents in other areas of Newly Weds was that Beekman’s vision for
Klein’s new role was not what Newly Weds was, would not work out, and was
simply “not in Newly Weds DNA.” [Pl.’s Resp. to Deft.’s SOF at ¶ 45]. When Klein
was terminated, Beekman told him that “the reorganization sometimes does not go
the way people think it’s going to go.” [Deft.’s SOF at ¶ 46].
Newly Weds offered Klein a severance package prior to his termination,
which he declined. [Id. at ¶ 47]. Klein did not believe he was being discriminated
against until he was terminated. [Id. at ¶ 48]. In discovery, Klein identified the
following individuals as being similarly situated to him, but treated more favorably:
George Kelecich, Craig Lawson, Kendle Gorski, Carol Bagley, and Debra Polcyn.
[Id. at ¶ 49]. At the end of 2015, Newly Weds’ R&D department had four directors
or senior directors who were over the age of 60. [Id. at ¶ 50]. Sixty employees were
affected by the reorganization of the R&D department – which included employees
being promoted, reassigned to another supervisor, or otherwise had their duties and
responsibilities changed in an effort to have the Department run more efficiently.
[Deft.’s Resp. to Pl.’s Sup. SOF at ¶ 1].
Prior to Klein’s termination, he was allowed to work from home with a
computer provided by Newly Weds. [Pl./Counter-Deft.’s SOF at ¶ 8]. In 2013, Klein
began using an external hard drive to back up his laptop onto CDs, and periodically
backed it up. [Id. at ¶ 9]. He had roughly 100 CDs at his home, with many of them

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being encrypted, preventing him from accessing any documents on them without his
work laptop. [Id. at ¶¶ 12, 13]. Klein admitted that the documents he retained could
contain Newly Weds’ trade secrets and confidential information. [Deft.’s/CounterPl.’s Supp. SOF at ¶ 9]. Klein often brought home his external drives he used to
back up his laptop so that he could access documents when worked from home.
[Pl./Counter-Deft.’s SOF at ¶ 14]. He kept the CDs at home because his office did
not have locks on it and claims that he had forgotten they were at his home. [Id. at
¶¶ 16, 17].
Upon Klein’s termination, he was given materials concerning the
termination, including a severance agreement and a letter which, among other
things, requested that he return any company work papers that he had in his
possession. [Id. at ¶¶ 19, 20]. Klein also signed a Non-Disclosure/Confidentiality
Agreement (“NDA”) at this time. [Deft.’s/Counter-Pl.’s Supp. SOF at ¶ 1]. Klein
immediately retained legal counsel to represent him in connection with his
termination. [Pl./Counter-Deft.’s SOF at ¶ 25]. Newly Weds never contacted Klein
about whether he had returned company documents, but sought information on it in
discovery requests served on Klein in April 2017. [Id. at ¶¶ 26, 27]. Klein answered
the request that he had “maintained backup hard-drives of work he performed for
Newly Weds during his 18 years of employment. That information has been stored
on CDs and is available to be examined at the offices of Plaintiff’s attorneys.” [Id. at
¶ 29].

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During the course of litigation, Klein provided his attorneys with the papers
he had received at the time of his termination, the hard drive, and the CDs with the
backups of documents from his work laptop. [Id. at ¶ 30]. It is disputed as to
whether Klein has used the documents in question for any work purpose, has
disclosed any of the documents to someone other than his attorney, or has any of
Newly Weds documents in his possession. [Id. at ¶ 31]. Klein alleges that, at all
times since his termination, the documents have either sat “undisturbed” in his
home or his attorneys’ offices and have been reviewed only in connection with this
litigation. [Id. at ¶ 32].
Klein admitted the relevant provisions of the NDA, including that Newly
Weds could enforce the agreement by injunction proceedings. [Deft.’s/Counter-Pl.’s
Supp. SOF at ¶ 3]. In addition to signing the NDA, Klein acknowledged receiving
Newly Weds’ Employee Handbook that contained a restriction regarding the use of
confidential and proprietary information. [Id. at ¶ 4]. Newly Weds alleges that
Klein received a letter in connection to his termination, reminding him of his
obligations under the NDA and stating that he was expected to comply with the
terms, although, Klein alleges that he received the letter, but did not read it. [Id. at
¶ 5]. Klein also received an Employment Termination Agreement from Newly Weds
indicating, among other things, that he had returned all company property
including company files and documents. [Id. at ¶ 6]. Klein asserts that he received
the letter but did not sign it. [Id. at ¶ 6].

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On May 26, 2017, Newly Weds’ attorney sent Klein a letter asserting that his
retention of the CDs violated the non-disclosure/confidentiality agreement he signed
when he was hired by Newly Weds in 1997 as well as unspecified portions of Newly
Weds’ employee handbook. [Pl./Counter-Deft.’s SOF at ¶ 35]. Klein’s attorney
declined to turn over the files since they could be used in his lawsuit, but agreed to
make the CDs available for copying. [Id. at ¶ 36]. On January 4, 2018, the parties
subsequently entered into an agreement concerning the documents and electronic
information. [Id. at ¶ 37].

I.

LEGAL STANDARD
Summary judgment is appropriate where the movant “shows 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 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). In evaluating
summary judgment motions, the Court must view the facts and draw all reasonable
inferences in favor of the nonmovant. Bennington v. Caterpillar Inc., 275 F.3d 654,
658 (7th Cir. 2001). The Court may not weigh conflicting evidence or make
credibility determinations, Omnicare, Inc. v. UnitedHealth Group, Inc., 629 F.3d
697, 704 (7th Cir. 2011), and must consider evidence that can “be presented in a
form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The movant
bears the initial burden of proving that no genuine issue of material fact exists and

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that they are entitled to judgment as a matter of law. Carmichael v. Village of
Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
If this burden is met, the adverse party must then “set forth specific facts
showing that there is a genuine issue for trial,” Anderson, 477 U.S. at 256, and
“must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). The mere existence of an alleged factual dispute is insufficient to defeat
a motion for summary judgment. Vukadinovich v. Bd. of Sch. Trs. of N. Newton Sch.
Corp., 278 F.3d 693, 699 (7th Cir. 2002).

II.

ANALYSIS
A. Age Discrimination
Klein alleges that Newly Weds discriminated against him in violation of the

ADEA when it terminated his employment. A plaintiff seeking to recover for
disparate treatment under the ADEA must show that the evidence, taken as a
whole, would demonstrate to a reasonable fact finder that age caused an adverse
employment action, Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016),
and must “prove, by a preponderance of the evidence, that age was the ‘but for’
cause of the [ ] action.” Carson v. Lake County., Indiana, 865 F.3d 526, 532 (7th Cir.
2017) (applying Ortiz to ADEA claims). While the Seventh Circuit has eliminated
the distinction between “direct” and “circumstantial” evidence, see Ortiz, 834 F.3d at

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765, this decision does not preclude the McDonnell Douglas burden shifting
framework for employment discrimination cases. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973).
The McDonnell Douglas framework places an initial burden on the plaintiff
to establish a prima facie case of discrimination. To do so, Klein must set forth
evidence that (1) he is a member of a protected class, (2) his job performance met
Newly Weds’ legitimate expectations, (3) he suffered an adverse employment action,
and (4) another similarly situated individual who was not in the protected class was
treated more favorably than he was. McKinney v. Office of Sheriff of Whitley Cty.,
866 F.3d 803, 807 (7th Cir. 2017). If Klein establishes a prima facie case, Newly
Weds must rebut the presumption of discrimination by articulating a legitimate,
nondiscriminatory reason for the employment decision. Id. The burden then shifts
back to Klein to show that the stated reason is pretextual, which permits “an
inference of unlawful discrimination.” Id.
A court can consider the evidence through the McDonnell Douglas framework
and then perform a cumulative assessment of the evidence to determine whether a
reasonable fact finder could determine that Klein was terminated because of his
age. David v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir.
2017)

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Prima Facie Case
Newly Weds concedes that Klein can show the first three elements in the
prima facie analysis but argues that Klein cannot establish the fourth element.
[Def. Br. at 8-9; Doc. No. 77]. While Newly Weds concedes that Klein’s performance
was meeting its legitimate expectations as they existed up to the time that Newly
Weds began its reorganization, Newly Weds asserts that its expectations changed
as the role envisioned for Klein was eliminated when it was determined that the
position that best suited Klein’s strengths simply was not consistent with Newly
Weds’ “DNA.” Newly Weds maintains that age played no role in Klein’s termination,
and that Klein was terminated due to his position being eliminated as part of the
reorganization of the department in which he worked.
Since the first three elements of the prima facie analysis are undisputed,
where Klein’s position has been eliminated and his duties have been absorbed by
retained employees not in the protected class, he must show that similarly situated
younger employees were treated more favorably. Merillat v. Metal Spinners, Inc.,
470 F.3d 685, 690 (7th Cir. 2006). Klein alleges that the day after his termination,
his responsibilities were immediately given to Kelecich, an R&D director who had
no scientific or technical background or advanced degrees. Kelecich was
immediately given an assistant, Bagley, and Klein’s direct reports, Wang and
Schranz, were reassigned to Kelecich and Bagley and continued to perform the
same duties they had done under Klein. Kelecich’s former job as an R&D director
was given to Lawson, a Senior R&D manager who was 12 years’ Kelecich’s junior.

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Newly Weds contends that the individuals Klein identified as similarly
situated – Kelecich, Bagley, Lawson, Gorski, and Polcyn – were in fact not similarly
situated and the fact that they remained employed at Newly Weds following the
reorganization does not support Klein’s prima facie case.
Based on the evidence, Newly Wed’s argument is not persuasive. The
evidence shows that prior to his termination, Klein was performing many of the
functions that the Continuous Improvement Group was created to handle – which
was head by Kelecich. [Pl.’s Resp. to Deft.’s SOF at ¶ 22, Ex. M (NWF 1250)]. Bagley
was immediately hired after Klein’s termination, and Newly Weds concedes that
certain of Klein’s direct reports were reassigned to Gorski and Kelecich/Bagley.
[Deft.’s Resp. to Pl.’s Sup. SOF at ¶ 10]. Although Newly Weds contends that most of
these shifts took place several months before Klein’s position was eliminated, the
contention falls short of viewing the evidence in the light most favorable to Klein.
Kelecich, who was 52 at the time, transitioned into a role – albeit new or not – that
assumed some of the functions Klein had performed with staff who had previously
directly reported to Klein. See Cianci v. Pettibone Corp., 152 F.3d 723, 728 (7th Cir.
1988) (An employee over the age of 40 can be substantially younger when there is a
10 year difference between the plaintiff and his replacement); see also David, 846
F.3d at 225-26 (Whether employers are similarly situated is a flexible, common
sense, and factual inquiry). Although Kelecich did not assume all of Klein’s duties
and roles, Klein has enough evidence to show that some of his duties were

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transitioned to a younger employee. And, he is thus able to make out a prima facie
case of discrimination.

Nondiscriminatory Reason for Termination
Once an employee establishes a prima facie case, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the firing. David,
846 F.3d at 225. Newly Weds has done so here. According to Newly Weds, Beekman
was hired to lead the reorganization of the R&D department. As part of that
reorganization, Beekman sought to determine how to best utilize the strengths of
employees within the R&D department, and determined that Klein’s strength was
coming up with new ideas. Beekman set out to design a role that played to Klein’s
strengths, but it was further determined that this role was simply not part of Newly
Wed’s “DNA” and Klein was terminated. Newly Weds reorganized its entire R&D
department in both Chicago and in other facilities throughout the United States –
with over 60 positions impacted. There were newly created roles, shifts in positions,
and eliminated positions. This is sufficient to show that there was a legitimate,
nondiscriminatory reason for terminating Klein’s employment. See Scruggs v. Gerst
Seed Co., 587 F.3d 832, 838 (7th Cir. 2009) (An employer may eliminate a position
as part of restructuring and may decide to fill a new position with a better qualified
person).

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Pretext
Lastly, the burden shifts back to Klein to provide enough evidence from
which a reasonable jury could find that Newly Weds’ proffered reason for his firing
is a pretext for discrimination. Clay v. Holy Cross Hospital, 253 F.3d 1000, 1005
(7th Cir. 2001). To establish pretext, Klein must show that Newly Weds’ reason for
his termination “was a lie—not just an error, oddity, or oversight.” Van Antwerp v.
City of Peoria, 627 F.3d 295, 298 (7th Cir. 2010). Showing pretext “requires proof
that the defendant’s explanation is unworthy of credence.” Faas v. Sears, Roebuck &
Co., 532 F.3d 633, 642 (7th Cir. 2008) (quotations and citations omitted). A court
looks for evidence that the employer “is dissembling to cover up a discriminatory
purpose.” David, 846 F.3d at 229. When an employer articulates a reason for
discharging the plaintiff not forbidden by law, it is not the Court’s province to
decide whether that reason was wise, fair, or even correct, ultimately, so long as it
was truly the reason for plaintiff’s termination. Reyno v. PNB Remittance Centers,
Inc., 2011 WL 3021300, at *8 (N.D. Ill. July 22, 2011) (quotations and citations
omitted).
Newly Weds justifies Klein’s termination as part of a reorganization effort of
over 60 positions in the R&D department of the company, at least three of which
positions resulted in the termination of an employee. [Deft.’s Resp. to Pl.’s Sup. SOF
at ¶ 1, Ex. L (NWF 384-393); Ex. M (NWF 1209, 1211, 1217, 1948, 2021, 2024); Ex.
P]. While Klein was not immediately terminated at the commencement of the
reorganization, he was ultimately terminated, according to Newly Weds, because

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the new role contemplated for Klein was incompatible with the new vision for the
company. [Deft.’s SOF at ¶¶ 43, 44].
In support of pretext, Klein focuses on the internal email from Beekman
dated April 10, 2015, placing Klein on a six-month test to determine if he could
perform in the role that Beekman contemplated for him upon reorganization,
stating that if Klein “cannot function in the role I will put a person in place who
can.” [Pl.’s Resp. to Deft.’s SOF at ¶ 14, Ex. M (NWF 1541)]. Klein argues that this,
coupled with the speed to which the reorganizational effort of removing staff from
under him commenced, “raises skepticism as to the sincerity of the reorganization.”
There is no dispute that staff previously under Klein continued with some of the
same duties they now perform under new supervisors. Pointedly, Klein emphasizes
that Lawson, one of the new supervisors of an employee previously working under
Klein, is 40 years of age. As to the Beekman email, there is no suggestion in this
email (or in any other evidence) that Klein was under scrutiny because of his age.
And, the evidence that other younger supervisors remained after reorganization is
not sufficient evidence of pretext.
Klein also believes that Newly Weds has had shifting justifications for his
termination. Shifting or changing stories by an employer regarding the
circumstances of the employee's separation can be evidence of pretext. Hitchcock v.
Angel Corps, Inc., 718 F.3d 733, 738 (7th Cir. 2013). Klein points to three other
reasons he says Newly Weds provided to the EEOC during their investigation as
evidence of pretext. Klein argues the following inconsistencies: 1) that Newly Weds

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told the EEOC that Klein’s entire group had been eliminated after the
reorganization [Pl.’s Resp. to Deft.’s SOF, Ex. L (NWF 373)]; 2) that Newly Weds
told the EEOC that 60 people experienced a change in their employment after
reorganization [id.]; and 3) that the EEOC was told that another employee had been
fired for job performance. [Id. at Ex. L (NWS 376)]. Klein also asserts that, in
addition to citing the reorganization, Newly Weds also referenced that he did not
complete his projects fast enough. [Pl. Br. at 14; Doc. No. 91].
The record shows that Newly Weds has consistently said it terminated Klein
pursuant to a reorganization. [Deft.’s Resp. to Pl.’s Sup. SOF at ¶ 1, Ex. L (NWF
373, 377-378, 384-393); Ex. M (NWF 1209, 1211, 1217, 1948, 2021, 2024); Deft.’s
SOF at ¶¶ 43, 44]. Moreover, the evidence demonstrates that Klein was terminated
because of the reorganization, not because his performance was unsatisfactory or
that he would have been terminated absent the reorganization. [Deft.’s Resp. to Pl.’s
Sup. SOF at ¶¶ 20-26].
Newly Weds advising the EEOC that 60 people experienced a change in their
employment is not a shifting explanation. It is a consistent explanation. Ultimately,
60 employees were affected by the reorganization – it is at least three with
termination and the remainder with different job functions and/or different
supervisory structures. [Deft.’s Resp. to Pl.’s Sup. SOF at ¶ 1, Ex. L (NWF 373-379,
384-393); Ex. P].
Lastly, Klein extensively argues that he was an exemplary employee, which
is indeed supported by the record and acknowledged by Newly Weds. But, Newly

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Weds does not argue that it terminated Klein for poor performance, so this, too, fails
to shift the pendulum in Klein’s direction.
When taking Klein’s evidence in the light most favorable to him, his evidence
of pretext is thin. His effort to show pretext is undermined by his admission that he
had discussions with Theiss regarding the need to improve headcount through
improved workflow between the RTIS Group and the rest of R&D prior to Beekman
being hired. Klein also had conversations with Beekman about what his new role
would entail and the different changes to the office that would occur. Klein knew
early on in the reorganization process that certain people who reported to him were
going to be reassigned within a different reporting system and agreed that the shift
of these employees was a “reasonable decision of management.”
As part of the reorganization, it was determined that Klein’s strengths as an
employee did not align with Newly Wed’s “DNA.” Klein himself acknowledged that
Newly Weds is customer-driven company. Further, Klein admitted that he was not
better suited than Lawson for the new role he was appointed to in the
reorganization, which included some of Kelecich’s prior responsibilities, and that he
would not have been better taking on the responsibilities assigned to Gorski than
she was. Drawing all reasonable inferences in Klein’s favor, Carson v. Lake County,
Indiana, 865 F.3d 526, 533 (7th Cir. 2017), Klein has failed to provide evidence that
a reasonable fact finder could conclude that his termination was pretextual and that
he was actually fired because of his age.

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Cumulative Assessment of the Evidence
Although Klein’s claim has failed to pass the McDonnell Douglas test, the
Court must also weigh whether Klein’s evidence would cause a reasonable fact
finder to determine that his age was the cause of his termination. Aberman v. Bd. of
Educ. of City of Chicago, 242 F. Supp. 3d 672, 686-87, 690-91 (N.D. Ill. 2017) (after
addressing the McDonnell Douglas test, cumulatively assessing “all the evidence” to
determine if the plaintiff could prove his age discrimination case at trial).
Taking all of Klein’s facts in the most favorable light, the Court still is not
inclined to believe that Newly Weds reorganized its entire R&D department in both
Chicago and in other facilities throughout the United States – with over 60
positions impacted – simply as a pretext to firing Klein. Various positions were
created and responsibilities were reassigned months before the decision to
terminate Klein’s employment was made. Accordingly, because Newly Weds
articulated a legitimate, non-discriminatory reason for terminating Klein, and Klein
was unable to counter with evidence that would allow a reasonable juror to find
that Newly Wed’s proffered justification was pretextual, Newly Wed’s motion for
summary judgment is granted.

B. State Law Claims
Given the foregoing conclusion that Newly Weds is entitled to summary
judgment on Klein's federal claim, the Court must decide whether to exercise its
supplemental jurisdiction over Newly Wed’s state law counterclaims. Where a

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district court has original jurisdiction over some claims, it has supplemental
jurisdiction over claims that are so related that they form part of the same case or
controversy. 28 U.S.C. § 1367(a); Aberman, 242 F. Supp. 3d at 694. If the court has
dismissed all claims over which it has original jurisdiction, it may decline to
exercise supplemental jurisdiction. 28 U.S.C. § 1367(c)(3). As the Seventh Circuit
has consistently stated, “[I]t is 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.” Aberman, 242 F. Supp. 3d at 694
(citations omitted); see also Williams v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007)
(“As a general matter, when all federal claims have been dismissed prior to trial,
the federal court should relinquish jurisdiction over the remaining pendant state
claims.”). As summary judgment has been granted on all federal claims, the Court
declines to exercise supplemental jurisdiction over the remaining state law
counterclaims and dismisses them as such.

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CONCLUSION
For the foregoing reasons, Newly Weds Food Inc.’s Motion for Partial
Summary Judgment [Doc. No. 76] is granted and Plaintiff/Counter-Defendant’s
Motion for Summary Judgment on Defendant/Counter-Plaintiff’s Counterclaims
[Doc. No. 95] is dismissed without prejudice.
SO ORDERED.

ENTERED:

DATE: September 10, 2019

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

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