Maxey v. Allstate Insurance company
Filing
59
MEMORANDUM Opinion and Order: Allstate's motion for summary judgment 48 is denied. Status hearing set for 2/26/2020 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 2/21/2020:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIAM MAXEY,
Plaintiff,
v.
ALLSTATE INSURANCE COMPANY,
Defendant.
)
)
)
)
)
)
)
)
)
No. 17 C 8392
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Plaintiff William Maxey brings this lawsuit against Allstate Insurance
Company (“Allstate”) alleging age discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. 1 Allstate moved
for summary judgment. R. 48-1. For the reasons set forth below, the Court denies
Allstate’s motion.
Standard
Summary judgment is appropriate “if 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); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all of
the evidence and draw all reasonable inferences from that evidence in the light most
favorable to the nonmovant. Horton v. Pobjecky, 883 F.3d 941, 948 (7th Cir. 2018). To
Maxey’s operative complaint also included a claim for retaliation. See R. 21, Count
II. The parties stipulated to the dismissal of that claim prior to Allstate filing its
motion for summary judgment. R. 44.
1
defeat summary judgment, a nonmovant must produce more than a “mere scintilla of
evidence” and come forward with “specific facts showing that there is a genuine issue
for trial.” Johnson v. Advocate Health and Hosps. Corp., 892 F.3d 887, 894, 896 (7th
Cir. 2018). Ultimately, summary judgment is warranted only if a reasonable jury
could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
Background
The following facts are undisputed unless otherwise noted. In February 2008,
at 57 years old (DOB April 10, 1950), Maxey was hired into Allstate’s Marketing,
Analysis, Research and Administration (“MARA”) department as a Market Research
Manager—a position in which he remained throughout his employment. R. 48-2 ¶¶
1, 8-9; R. 53 ¶¶ 1, 8-9. Maxey’s duties included meeting with business partners to
define and develop research needs and plans, collaborating with vendors, and
analyzing and interpreting market research data. R. 48-2 ¶ 10; R. 53 ¶ 10. He
reported to several different managers during his employment.
Maxey’s annual performance reviews permitted four possible ratings: Better
Than Expected; Expected; Inconsistent; and Unacceptable. R. 48-2 ¶ 12; R. 53 ¶ 12.
Maxey reported to Jerry Otto Boldt (DOB December 18, 1965) throughout 2011 and
2012. Boldt assigned Maxey an overall performance rating of “Inconsistent” for 2011,
noting (among other things) errors in Maxey’s research reports, and that Maxey
needed to be “more proactive in anticipating issues” with research data. R. 48-2 ¶¶
2
13-14; R. 53 ¶¶ 13-14. Maxey received another “Inconsistent” rating in 2012. R. 48,
Ex. 6.
In 2013, Maxey reported to Boldt for part of the year, and Sherri Winters (DOB
February 6, 1970) for the rest, and again earned an overall rating of “Inconsistent.”
R. 53 ¶ 17; R. 48, Ex. 7. According to Boldt, Maxey needed to add more insight from
tracking studies and special projects that he managed and keep his managers
updated, while Winters noted that she had seen improvement, and that Maxey was
“[d]evelop[ing] more insights from the tracking studies.” R. 48, Ex. 7.
Maxey continued to report to Winters in 2014. R. 48-2 ¶ 19. Winters elevated
Maxey’s performance rating to “Expected” that year, noting that he “continued to
manage the claims tracking studies successfully,” but needed to “more effectively
share information,” “offer insights,” and “coach the organization on tactics to improve
loyalty scores.” R. 48, Ex. 8.
Winters left the company mid-way through 2015, and Maxey began reporting
to Ken Kirsten (DOB May 24, 1968). At the time, Kirsten was 47 years old, and Maxey
was 65. R. 48-2 ¶ 20; R. 53 ¶ 20. Kirsten rated Maxey’s 2015 performance as
“Inconsistent,” noting that Maxey was “meeting expectations for day-to-day project
management,” but that there remained an “opportunity to be viewed as a thought
leader on the shopping behavior.” R. 48 ¶ 22; R. 53 ¶ 22.
After delivering Maxey’s 2015 performance review, Kirsten considered placing
Maxey on an “Unacceptable Notification” (“UN”) right away—the unsuccessful
completion of which could lead to termination—and asked Human Resources about
3
the performance review process leading up to a UN. R. 48-2 ¶ 35; R. 53 ¶ 35; R. 48,
Ex. 9 at 19-20. But initially no such plan was implemented. Instead, according to
Maxey, Kirsten frequently replaced the weekly face-to-face meeting the two were
supposed to have with lengthy emails, and began every meeting the two did have by
stating that Maxey was “trending toward unacceptable.” R. 53 ¶ 28; R. 56 ¶ 28. Maxey
also states that he repeatedly sought and was refused clarification from Kirsten on
his 2016 goals, and that Kirsten deliberately excluded him from 8 client meetings
between February 2016 and March 2017, causing him to be unprepared for later
meetings at which Kirsten tried to embarrass Maxey. R. 53 ¶¶ 18, 20. Kirsten denies
these claims. R. 56 ¶¶ 18, 20.
Kirsten rated Maxey’s 2016 performance as “Inconsistent,” noting in particular
that Maxey “tend[ed] to handoff more complex requests to others and then simply
forward[ ] results without taking ownership of checking the quality,” and that he did
not “write many presentations or summaries,” and “relie[d] on suppliers or others to
write results.” R. 48, Ex. 14. As discussed further below, Maxey disputes this and
other representations.
Performance action plan, unacceptable notification and termination.
In April 2017, Kirsten placed Maxey on a 45-day performance action plan (“PAP”).
Before doing so, he told Maxey “I’m going to rate you unacceptable. I’m letting you
know that now.” R. 53 ¶ 29; R. 56 ¶ 29. Thereafter, in June 2017, Kirsten informed
Maxey that he was being placed on a 30-day UN, because he had not improved his
performance as required by his PAP. R. 48-2 ¶ 36; R. 53 ¶ 36. Once a UN is
4
implemented, two outcomes are possible: (1) removal of the UN for improved
performance; or (2) termination for failure to improve. R. 48-2 ¶¶ 35, 43; R. 53 ¶¶ 35,
43. Maxey and Kirsten had regular meetings regarding Maxey’s progress under the
UN. Id. But halfway through the UN period, Kirsten began preparing a formal
request for Maxey’s termination (“RFT”), purportedly having concluded that Maxey
was trending toward not meeting those expectations. R. 48-2 ¶ 37; R. 53 ¶ 37. MARA
department director Brett Sever, MARA Vice President Pam Moy, and HR approved
the RFT, R. 48-2 ¶ 38; R. 53 ¶ 38, and Maxey was terminated on August 9, 2017, R.
48-2 ¶ 45; R. 52 ¶ 45.
Kirsten’s behavior and comments toward Maxey. According to Maxey,
Kirsten was nasty toward him throughout the period in which Maxey reported to him,
lied in his performance reviews, put pressure on him to turn projects around in a time
period that was not possible, and threatened to fire him in the days leading up to his
termination. R. 53 ¶ 53.
In addition, Maxey contends that Kirsten told him at various points that
Maxey was “old,” “stuck in the past,” “[did]’t want to change,” and “[did]n’t want to
look at new things,” and that “we could get two people for what we pay for you,”
“you’re not worth the money you’re making,” “younger people do things faster,” and
“go get your glasses.” R. 53 ¶ 50; R. 56 ¶ 2. Kirsten denies making these or any other
arguably age-related comments. Id.
Priscilla Dixon (DOB March 18, 1957), a Senior Manager of Market Research
like Kirsten, also testified that in Spring 2017, Kirsten told her in connection with
5
hiring for another position that he did not want to work with another older worker
because older workers didn’t always take direction well. R. 54, Ex. B at 10-13. Dixon
is not familiar with Maxey’s job performance or the reason for his termination. Id. at
19.
Ages of MARA department employees and Maxey’s replacement. Allstate
hired Leslie Eden to replace Maxey. She was 34 years old at the time (DOB August
21, 1983), and her salary was greater than Maxey’s $106,694. R. 48-2 ¶ 57; R. 53 ¶
57; R. 56 ¶ 37. Of the 11 employees who made up the MARA department when Maxey
was terminated, 8 were born in or before 1974, including Maxey and Kirsten. R. 48-2
¶ 58; R. 53 ¶ 58. Maxey was the oldest MARA employee at the time, followed by
Tamara Romanova, the other Market Research Manager who reported to Kirsten,
who was 7 years his junior (DOB May 10, 1957). R. 48, Ex. 2 ¶ 12 and Ex. 11.
Romanova also received an “Inconsistent” performance rating for 2015, but improved
to an “Expected” rating for 2016, remains employed by Allstate, and continues to
report to Kirsten. R. 48-2 ¶ 59; R. 53 ¶ 59.
Post-termination employment search. Maxey began looking for a new job
after his termination, but remains unemployed. R. 48-2 ¶ 61; R. 53 ¶ 61. He received
three face-to-face interviews for full-time market research manager positions shortly
after leaving Allstate, but was unable to satisfactorily negotiate his salary with any
of the employers and states that he did not receive any formal offers. Nevertheless,
Maxey testified that if he had agreed to take the salary each employer had proposed
(which ranged from $80,000 to $90,000), he would have been hired. R. 53 ¶¶ 62-65.
6
Analysis
Allstate argues: (1) that no genuine issues of fact remain for trial on Maxey’s
age discrimination claim; and (2) in the alternative, that summary judgment is proper
on the issue of mitigation, and any damages to which Maxey may be entitled should
be reduced by $90,000 per year—the highest salary refused by Maxey after his
termination. The Court addresses Allstate’s arguments in turn.
I.
Merits
The ADEA makes it unlawful for employers to discriminate against employees
who are 40 years old or older because of their age. Fleishman v. Cont’l Cas. Co., 698
F.3d 598, 603 (7th Cir. 2012) (citing 29 U.S.C. §§ 623(a)(1) and 631(a)). “To prevail on
an age-discrimination claim, the plaintiff must prove that his age was the ‘but-for’
cause” of the challenged adverse employment action. Wrolstad v. Cuna Mutual
Society, 911 F.3d 450, 454 (7th Cir. 2018) (citing Gross v. FBL Fin. Servs., Inc., 557
U.S. 177-78 (2009)).
Traditionally, a discrimination plaintiff could survive summary judgment by
“presenting direct or circumstantial evidence that [the employer] took the challenged
job action against him because of his age”—referred to as the “direct method.”
Wrolstad, 911 F.3d at 454. Alternatively, a plaintiff could proceed under the “indirect
method”—or
McDonnell
Douglas
burden-shifting
framework—by
“producing
evidence that a similarly situated person not in the protected class was treated more
favorably.” Id. But in Ortiz v. Werner Enterprises, Inc., the Seventh Circuit ordered
district courts to “stop separating ‘direct’ from ‘indirect’ evidence and proceeding as if
7
they [are] subject to different legal standards.” 834 F.3d 760 (7th Cir. 2016). The Ortiz
court reaffirmed that the McDonnell Douglas burden-shifting test was one framework
for analyzing a discrimination claim, but directed that going forward, “all evidence
belongs in a single pile and must be evaluated as a whole.” Id. at 766. Thus, “the basic
question at the summary-judgment stage is whether the evidence as a whole would
allow a reasonable jury to find that the plaintiff suffered an adverse job action because
of his age.” Wrolstad, 911 F.3d at 455 (emphasis added); see also Ortiz, 834 F.3d at
765 (“Relevant evidence must be considered and irrelevant evidence disregarded, but
no evidence should be treated differently from other evidence because it can be
labeled ‘direct’ or ‘indirect.’”).
Allstate argues that Maxey cannot establish a genuine issue for trial under
McDonnell Douglas, and cannot otherwise demonstrate that his age was the but-for
cause of his termination. But Allstate addresses Kirsten’s arguably age-related
comments largely separate from the remaining evidence. See generally R. 48-25. This
approach was overruled in Ortiz. See Harper v. Bob Rohrman Pre-Owned Car
Superstore, 2019 WL 1281987, at *5 (N.D. Ill. Mar. 20, 2019) (noting that the
defendant impermissibly “sequestered in a box labeled ‘direct’ and considered
separately from other evidence” manager’s age-related statements, and that
discussing evidence holistically was “more straightforward”). Accordingly, while the
Court begins by analyzing all of the evidence under the McDonnell Douglas
framework, it then assesses “cumulatively all the evidence presented” to determine
whether a reasonable factfinder could conclude that Maxey was terminated because
8
of his age. David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th
Cir. 2017) (quoting Ortiz, 846 F.3d at 765).
McDonnell Douglas. Under McDonnell Douglas, a plaintiff must first
establish a prima facie case of discrimination, showing that: (1) he is a member of a
protected class (here, 40 or older); (2) he was performing his job satisfactorily; (3) he
suffered an adverse employment action; and (4) his employer treated similarly
situated employees outside of the protected class more favorably. Hutt v. AbbVie
Prods., LLC, 757 F.3d 687, 693 (7th Cir. 2014). If the plaintiff can establish a prima
facie case, the burden shifts to his employer to “articulate a legitimate,
nondiscriminatory reason for the adverse employment action.” Andrews v. CBOCS
W., Inc., 743 F.3d 230, 234 (7th Cir. 2014), overruled on other grounds by Ortiz, 834
F.3d at 765. The burden then shifts back to the plaintiff to demonstrate that the
employer’s explanation is pretextual. Id.
There is no dispute that Maxey was over 40 at all relevant times and that his
termination constitutes an adverse employment action. But Allstate contends Maxey
has no evidence from which a reasonable jury could conclude either that he was
performing his job satisfactorily, or that similarly situated employees outside of his
protected class were treated more favorably. In fact, Allstate argues that there is no
evidence of any similarly situated employee under Kirsten’s direction who was under
40 when Maxey was terminated, pointing out that Maxey’s only counterpart,
Romanova, was 60 at the time and remains employed by Allstate (reporting to
Kirsten). But Allstate misses that Maxey can satisfy the fourth element by
9
demonstrating that Allstate sought a substantially younger replacement. See Olson
v. N. FS, Inc., 387 F.3d 632, 635-36 (7th Cir. 2004) (when an “employee within the
protected class has been discharged and replaced, we have required that the employee
show only . . . that the employer hired someone else who was substantially younger.”)
(internal citations omitted). Maxey’s replacement, Leslie Eden, then age 34, was just
over half Maxey’s age (67), and thus “substantially younger” than he. Balderston v.
Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 322 (7th Cir. 2003)
(defining “substantially younger” as ten years or more).
Nevertheless, Allstate contends without citing authority that any inference of
discrimination fails because other managers were involved in the decision to hire
Eden. R. 55 at 9. But Allstate cites Priscilla Dixon’s deposition testimony in support,
and while Dixon testified unequivocally that Kristen played a role in the hiring
decision, she didn’t “know for certain” who else—or even if anyone else—was involved.
R. 54, Ex. B at 17, 18 (Dixon deposition excerpt indicating that hiring is “usually sort
of a team decision so I don’t know if there was one person or multiple people who
weighed in on it”). Kirsten’s involvement is sufficient to satisfy the fourth element.
Allstate also argues that Maxey’s history of “Inconsistent” ratings and failure
to improve during the PAP and UN periods belie any contention that he was
performing his job satisfactorily. Because Allstate’s proffered reason for Maxey’s
termination was Maxey’s failure to perform his job satisfactorily, the analysis of that
prong of his prima facie case “merges” with the question of pretext. Vaughn v. Vilsack,
715 F.3d 1001, 1007 (7th Cir. 2013); see also Senske v. Sybase, Inc., 588 F.3d 501, 507
10
(7th Cir. 2009) (in such a case, the court “focus[es] on the question of pretext, bearing
in mind that without sufficient evidence of pretext [the plaintiff] cannot show that he
was meeting [the employer’s] legitimate expectations.”). To show pretext, Maxey
needs evidence that Allstate was “dishonest rather than simply foolish or
unreasonable.” Schmitt v. Cent. Processing Corp., 675 Fed. App’x 615, 620 (7th Cir.
2017); see also Forrester v. Rauland-Borg Corp., 453 F.3d 416, 418 (7th Cir. 2006)
(“The question is never whether the employer was mistaken, cruel, unethical, out of
his head, or downright irrational in taking the action for the stated reason, but simply
whether the stated reason was his reason: not a good reason, but the true reason.”).
He can do so “directly by showing that a discriminatory reason more likely motivated
his termination, or indirectly by showing that [Allstate’s] explanations are unworthy
of credence.” Senske, 588 F.3d at 507.
At the outset, Maxey argues that the statements in his performance reviews,
PAP, UN and RFT are inadmissible hearsay. R. 52 at 5. But the issue is whether
those statements accurately reflect Kirsten’s honestly held beliefs, not whether they
are true. 2 Documents purporting to reflect Kirsten’s perceptions of Maxey’s
performance are admissible for that purpose, so the Court considers them here.
But Maxey also argues that the evidence shows that Kirsten did not truly
believe Maxey’s performance warranted termination. And that contention has teeth.
Indeed,
Maxey
combs
his
performance
documentation under
Kirsten
for
Maxey himself seems to acknowledge this. See id. (stating “some of the documents
might be admissible to establish Kirsten’s state of mind.”).
2
11
mischaracterizations and falsehoods, pulling out plenty. By way of example, Maxey
characterizes the representation in his 2016 performance review that Maxey did not
“write many presentations or summaries, and instead relie[d] on suppliers or others
to write results,” R. 48, Ex. 16 at 4, as a “flat out lie,” R. 48, Ex. 1 at 178-79. He
explains that he prepared and presented reports on surveys of “2 or 300 people” on
his own, and that while he did work with outside consultants that manage “heavy
databases” for larger surveys involving millions of customers, that was the common
practice, and he was still involved with those surveys, “convert[ing ] and writ[ing]
[his] own version that people at Allstate understand.” R. 48, Ex. 1 at 178-79. Maxey
also disputes the criticism that he failed to attend a meeting on a project that was his
responsibility, see R. 48, Ex. 16 at 9-10, testifying at his deposition that Kirsten “set
[the project] up,” and that Maxey “knew nothing about it.” R. 48, Ex. 1 at 177-78.
Maxey makes similar arguments about the representations in his PAP. There,
Kirsten indicated that Maxey recommended that a business partner work directly
with a supplier to obtain certain data, which left Maxey unable to review the quality
of the information before it was shared. R. 48, Ex. 12 at 4. But Maxey explains that
in actuality: 1) the business partner already had the data, and simply wanted it to be
organized differently; 2) Maxey reviewed the (reorganized) data from the supplier
before passing it on to the business partner; 3) Maxey told Kirsten how he handled
the matter at the time and Kirsten made no objection; and, perhaps most importantly,
4) Kirsten had advised others to do the same under the same circumstances
“numerous times.” R. 54, Ex. A ¶ 6. The PAP also cites Maxey’s failure to suggest
12
improvements to certain projects. R. 48, Ex. 12 at 4. But the record evidence creates
doubt as to whether improvements were necessary in each case. See R. 48, Ex. 9 at
142 (Kirsten’s deposition testimony stating that “the expectation in [Maxey’s] role
wasn’t to contribute zero” to the “shopping-tracking questionnaire” at issue, but also
noting that there wasn’t anything “wrong” with the project); see also R. 54, Ex. A ¶ 9
(Maxey’s declaration stating that Kirsten asked for a recommendation about the
shopping-tracker questionnaire, and he explained that none were necessary). The
PAP also states that Maxey sent a report to a business partner without first sending
it to Sever or Moy “for initial review.” R. 48, Ex. 12 at 5. But according to Maxey, at
an earlier MARA meeting at which Kirsten was present, Sever stated “don’t let us be
a bottleneck” if business partners needed to see a document (referring to Sever and
Moy). R. 54, Ex. A ¶ 11.
Kirsten repeated many of the alleged failures highlighted in Maxey’s PAP in
his UN, which rated Maxey’s performance “unacceptable” as to each of his goals,
specifically: take ownership of project work; drive insights; and the leadership
principles “We Drive Results;” and “We’re Transparent.” See generally R. 48, Ex. 16.
And according to the RFT, Maxey failed to meet the same goals during the UN period.
But Maxey disputes that representation, too. As to taking “ownership of all project
work,” the RFT cites Maxey’s purported failures with respect to a particular project
to: send summaries of three meetings with the business partner; provide a project
plan and timeline until asked by the same business partner after the third such
meeting; and include certain key details in the plan when submitted, including the
13
“status of the selection of the agents for the interviews.” R. 48, Ex. 17 at 2-3. But
according to Maxey, agent selection was not typically included in such a plan, and
Kirsten had not told him otherwise. R. 54, Ex. A at 3-4. Maxey also argues that
Kirsten mischaracterized his efforts in the RFT, which itself makes clear that he was
engaged in the project, and that by demanding meeting summaries, Kirsten was
attempting “to load Plaintiff up with busy work,” so some “would slip through the
cracks.” R. 48, Ex. 17 at 2; R. 52 at 10.
Maxey also disputes the basis for Kirsten’s representation that he failed to
achieve his second goal, to “Drive Insights.” According to the RFT, Maxey sent
Kirsten a project plan for new research despite that “the business partner requested
a synthesis of existing research.” R. 48, Ex. 17 at 3. But Maxey claims that he warned
Kirsten that the existing research did not sufficiently address the issue the business
partner was concerned about, and Kirsten told him to synthesize it anyway. R. 54,
Ex. A ¶ 13. The RFT cites the same alleged failure as the basis for the conclusion that
Maxey failed with respect to his third goal: “We Drive Results.” R. 48, Ex. 17 at 4; R.
52 at 11.
Maxey also disputes the basis for his alleged failure to satisfy his fourth goal:
the leadership principle “We’re Transparent.” The RFT points to: (1) a delay in
responding to a business partner’s request for research; and (2) Maxey’s initiating a
project without first getting Kirsten’s permission. R. 48, Ex. 17 at 4-5. But according
to Maxey, any delay in providing research was due to his initial determination that
the research simply was not relevant (and that Kirsten indicated that he understood
14
that at the time), R. 54, Ex. A at 4, and Maxey was not required to get advance
permission to initiate the project at issue, R. 54, Ex. A ¶ 15.
Allstate contends that Maxey’s refutations via declaration and deposition
testimony (without more) amount to “personal disagreements with Allstate’s
perception of his job performance,” are self-serving and speculative, and cannot defeat
summary judgment. R. 55 at 4 (emphasis in original omitted). But the Seventh
Circuit has repeatedly found that a nonmoving party’s affidavit, declaration, or
deposition testimony alone can defeat summary judgment. See e.g., Payne v. Pauley,
337 F.3d 767, 771 (7th Cir. 2003) (affidavit) and Johnson, 892 F.3d at 901 (declaration
and deposition testimony). And there is no argument that Maxey’s testimony is not
based on personal knowledge or is otherwise inadmissible at trial. Harper, 2019 WL
1281987 at *7. Further, the Court is mindful that it does not sit as a “super personnel
department that second-guesses employer’s business judgments.” Milbrook v. IBP,
Inc., 280 F.3d 1169, 1181 (7th Cir. 2002) (internal citation and quotation omitted).
But this is not a case in which the plaintiff argues that faulty reasoning or mistake
led to his troubles. Instead, Maxey attacks the truth of the representations that led
to his termination—the very essence of pretext. See Tibbs v. Admin. Office of the Ill.
Courts, 860 F.3d 502, 506 (7th Cir. 2017) (“A plaintiff must point to evidence tending
to prove that the employer’s proffered reasons are factually baseless, were not the
actual motivation for the discharge in question, or were insufficient to motivate the
termination.”) (internal quotations and citations omitted). At its core, this case pits
one party’s word against the other’s. The Court cannot resolve a summary judgment
15
motion by making credibility determinations. See Johnson, 892 F.3d at 893 (“As we
have said many times, summary judgment cannot be used to resolve swearing
contests between litigants.”). As such, a dispute of fact remains regarding whether
Kirsten honestly believed Maxey’s performance was deficient.
But it isn’t just that the reasons given for Maxey’s termination may be
exaggerated or untrue. There’s also the undisputed fact that Maxey’s replacement
(hired at least in part by Kirsten) was just half his age and paid more than he was
out of the gate. And that a jury could infer from Kirsten’s threats and actions—for
example, Kirsten’s approaching HR early on so that he could understand whether he
could place Maxey on a UN right away, and his threat that he was going to rate Maxey
“unacceptable,” even before the PAP commenced—that Kirsten appeared to have
been working toward Maxey’s termination from the outset. And finally there’s
Maxey’s claim that Kirsten made several ambiguous comments to him, including
referring to Maxey as “old,” “stuck in the past,” “not worth the money [he was]
making,” and that he “[did]n’t want to look at new things.” And still other comments
that “we could get two people for what we pay for you,” and “younger people do things
faster.” Kirsten denies making these remarks. But his denials are due no weight here.
See Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999) (“At the summary
judgment stage, we must assume that the defendant’s agents made the statements
attributed to them.”).
Allstate also argues that the comments are not necessarily related to age. The
Court agrees that many of the comments standing alone do not directly implicate age.
16
But in light of Kirsten’s statement that he did not want to hire another older worker
because older workers don’t take direction well, a reasonable jury could readily
conclude that the more ambiguous remarks made directly to Maxey were motivated
by discriminatory animus. Whether to give weight to such remarks (and if so, what
amount), is an issue for the jury. See Mullin v. Temco Machinery, Inc., 732 F.3d 772,
778 (7th Cir. 2013) (“A jury is the appropriate body to evaluate the significance of
[ambiguous] statements.”).
Despite Allstate’s urging, nor will the Court discount these comments as
insufficiently connected to Kirsten’s decision to terminate Maxey. The cases Allstate
cites in which courts declined to consider similar ambiguous comments did so when
analyzing whether the comments alone sufficed under the “direct method,” and/or
when the comments were the only evidence of pretext under McDonnell Douglas. See
Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 781-82 (7th Cir. 2007) (analyzing
“stray remarks” under the direct method); see also Gadsby v. Norwalk Furniture
Corp., 71 F.3d 1324, 1330 (7th Cir. 1995) (accord); Weiss v. Campagna-Turano
Bakeries, Inc., 76 F. Supp. 2d 936, 940-41 (N.D. Ill. 1999) (accord). But the “direct
method” is no longer viable, and Maxey relies on more than remarks here.
Next, Allstate argues that any inference of discrimination is belied by the fact
that Kirsten himself was over 40. But an older worker can be discriminated against
by an older supervisor, and this seems particularly possible where, as here, the age
difference between them is 18 years. See Age Discrimination, U.S. EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, eeoc.gov/laws/types/age.cfm (last visited
17
Feb. 14, 2020) (“Discrimination can occur when the victim and the person who
inflicted the discrimination are both over 40.”). Nor is it dispositive that the majority
of the MARA department was over 40. Kirsten, the decisionmaker, directly oversaw
only Maxey and Romanova, both of whom were in their 60s. He had trouble with each,
and again, replaced one with a substantially younger employee. The Court agrees
with Maxey that a reasonable jury could infer on this record that Romanova was
retained to improve appearances and lessen the chances of a lawsuit like this one.
In sum, summary judgment is not proper on this record because particularly
in light of Kirsten’s comments and the evidence of pretext, a rational jury could
conclude that Kirsten constructed a basis for terminating Maxey and the true reason
was his age.
Ortiz. The Court reaches the same result “assessing cumulatively all the
record evidence” as directed by Ortiz. David, 846 F.3d at 227. Indeed, and for the
reasons identified above, a reasonable jury could conclude that Kirsten recommended
Maxey’s termination because of his age. Questions remain regarding whether Kirsten
truly believed Maxey’s performance was deficient in the ways described. That dispute
is colored by Kirsten’s ambiguous comments, and the fact that Kirsten replaced
Maxey with someone half his age (and paid her more). Ultimately, the jury in any
trial of this matter may conclude that Kirsten did honestly believe the information
he provided in his written record of discipline and RFT. Alternatively, the jury may
conclude that Kirsten simply disliked Maxey. A jury also could determine that
Maxey’s age was a factor, but not the “but for” factor behind Maxey’s termination.
18
But because on this record the same reasonable jury viewing the evidence in the light
most favorable to Maxey could conclude that Maxey’s age was the determining factor,
summary judgment is improper, and Allstate’s motion is denied.
II.
Mitigation
Allstate argues in the alternative that Maxey failed to mitigate his damages
by declining offers of employment, and that in his response to the contrary, Maxey
“incorrectly flip[ped] the burden of proof as to mitigation.” R. 55 at 10. But failure to
mitigate is an affirmative defense, and Maxey is correct that Allstate has not met its
burden here.
Generally, an employment discrimination plaintiff has a duty to use
reasonable diligence in finding substantially equivalent employment after unlawful
discharge. NLRB v. Midwestern Personnel Servs., Inc., 508 F.3d 418, 423 (7th Cir.
2007). To prevail on the issue, the employer must prove both: (1) that the plaintiff
was not reasonably diligent in seeking other employment; and (2) that there was a
reasonable chance that he might have found comparable employment with the
exercise of such diligence. EEOC v. Gurnee Inn Corp., 914 F.2d 815, 818 (7th Cir.
1990). A plaintiff’s refusal of a job “substantially equivalent to the one he was denied”
is a failure to mitigate. Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982).
There is no dispute that while employed with Allstate, Maxey earned a salary
of over $106,000. And there is no dispute that Maxey interviewed for positions with
other employers and discussed salaries with those employers ranging from $80,000
to $90,000. But even assuming that Maxey was formally offered the positions
19
associated with those salaries (which he disputes), Allstate has failed to demonstrate
that the positions were “substantially equivalent” to his position with Allstate such
that he should have accepted the offer at the time. See Meyer v. United Air Lines, Inc.,
950 F. Supp. 874, 876 (N.D. Ill 1997) (noting that a substantially equivalent position
affords
“virtually
identical
promotional
opportunities,
compensation,
job
responsibilities, working conditions, and status,” and that a discrimination plaintiff
“is permitted to take . . . a permanent job which might pay less money . . . only after
the plaintiff has made reasonable and diligent efforts to find comparable
employment”) (citing Ford Motor, 458 U.S. at 231, 232 n. 14 & 16). Indeed, the highest
salary discussed would have been a 15% pay cut. And despite Allstate’s urging, that
salary cannot be inflated on the basis of a bonus that is unsubstantiated by the
evidence. The only evidence of a bonus opportunity came from Maxey’s deposition
testimony. But that testimony was speculative at best, and did not address the
requirements for earning or otherwise receiving any such bonus. See R. 48, Ex. 1 at
306-07 (Maxey deposition testimony excerpt in which he stated that he did not know
or recall what the bonus structure was, but “it was around 10 percent because that’s
what most companies will offer you.”). As such, and with nothing other than
speculation about the timing of the interviews in question, Allstate falls short of
demonstrating that Maxey refused a “substantially equivalent” position as a matter
of law, and, even if it had done so, when that refusal occurred so as to cut off Maxey’s
backpay award. As such, summary judgment is also denied as to mitigation.
20
Conclusion
For these reasons, the Court denies Allstate’s motion for summary judgment.
R. 48-1.
ENTERED:
_______________________
Honorable Thomas M. Durkin
United States District Judge
Dated: February 21, 2020
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?