Johnson v. Statewide Investigative Services, Inc.

Filing 92

MEMORANDUM Opinion and Order: The Court grants defendant's summary judgment motion 84 . Civil case terminated. Signed by the Honorable Sharon Johnson Coleman on 9/19/2022. Mailed notice. (ym, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HAROLD JOHNSON,
Plaintiff,
v.
STATEWIDE INVESTIATIVE SERVICES,
INC., a/k/a STATEWIDE GUARD,
Defendant.

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Case No. 20-cv-1514
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff Harold Johnson brings this lawsuit against his former employer defendant Statewide
Investigative Services, Inc. (“Statewide”) alleging age discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. Before the Court is
Statewide’s motion for summary judgment brought under Federal Rule of Civil Procedure 56(a).
For the following reasons, the Court grants Statewide’s motion.
Background
In July 2011, Statewide, which is in the business of private security services for residential
and commercial purposes, hired Johnson as a supervisor. At the time Johnson completed his
employment application, he was a retired Chicago police officer and 69-years-old. During his
employment, Johnson worked at Statewide’s client location of 3300 N. Campbell in Chicago, Illinois
(“Campbell location”), where a school was located.
Statewide terminated Johnson’s employment on February 4, 2019. Statewide contends it did
so because the supervisor position at the Campbell location was eliminated. Undisputed evidence
shows that between February 2019 and December 2021, there were only two Statewide locations
that had supervisors and Statewide had not hire another supervisor for the Campbell location since

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February 2019. Johnson, however, maintains he was not a supervisor at the time Statewide
terminated his employment and that Statewide terminated his employment based on his age.
Johnson points to his deposition testimony to support his age discrimination claim. More
specifically, he testified that in April 2017, while they were having lunch at a restaurant in the
suburbs, Statewide’s Director of Operations Michael Barone asked him how old he was and how
long he would remain working, to which Johnson answered he would like to work a few more years.
Barone, like Johnson, was a former Chicago police officer before he began working for Statewide
and was 64-years-old at the time of Johnson’s termination. Again, in September 2017, while Barone
and Johnson were dining at a restaurant in Chicago, Barone asked Johnson, “you’re getting on in age
now, how much longer are you going to put up with this shit?” Johnson also testified that Barone
called him an old man on several occasions.
After his termination, specifically in March 2019, Johnson filed an IDHR/EEOC Charge
asserting Statewide terminated his employment based on his age in violation of the ADEA. On
December 10, 2019, the EEOC issued a right to sue letter. Johnson filed a timely complaint on
March 2, 2020.
Legal 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A
genuine dispute as to any 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, 106 S.
Ct. 2505, 2510, 91 L.E.2d 202 (1986). When determining whether a genuine dispute as to any
material fact exists, the Court must view the evidence and draw all reasonable inferences in favor of
the nonmoving party. Id. at 255; Holloway v. City of Milwaukee, 43 F.4th 760, 765 (7th Cir. 2022).
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Discussion
The ADEA protects workers who are 40 years of age and older from age-based employment
discrimination. 29 U.S.C. § 623(a)(1). Under the ADEA, a plaintiff must establish that his age was
the but-for cause of his employer’s adverse employment action. Kleber v. CareFusion Corp., 914 F.3d
480, 486 (7th Cir. 2019) (en banc). At summary judgment, a plaintiff may carry this burden by
presenting direct or circumstantial evidence, or, in the alternative, he may proceed under the
McDonnell Douglas burden-shifting method of proof. See Marnocha v. St. Vincent Hospital & Health
Care Ctr., Inc., 986 F.3d 711, 718 (7th Cir. 2021).
Here, the parties approach Johnson’s claim under the McDonnell Douglas method of proof.
Under this burden-shifting framework, Johnson must present evidence creating a genuine issue of
material fact that: (1) he was a member of a protected class; (2) he was meeting Statewide’s
legitimate job expectations; (3) he suffered an adverse employment action; and (4) similarly situated
employees who were not members of his protected class were treated more favorably. Brooks v.
Avancez, 39 F.4th 424, 434 (7th Cir. 2022). If Johnson meets each of these prima facie elements, the
burden shifts back to Statewide to set forth a legitimate, nondiscriminatory reason for Johnson’s
termination. Lewis v. Indiana Wesleyan Univ., 36 F.4th 755, 760 (7th Cir. 2022). If Statewide makes
this showing, the burden then shifts back to Johnson to produce evidence that Statewide’s reason is
pretext for discrimination. Chatman v. Board of Educ. of Chicago, 5 F.4th 738, 746 (7th Cir. 2021).
Before examining the parties’ arguments, the Court addresses Statewide’s assertion that
Johnson contradicts his December 2020 deposition testimony in his March 2022 declaration filed in
tandem with his response to the present summary judgment motion. The Seventh Circuit considers
such contradictions under what it calls the “sham-affidavit” rule, which prohibits a party from
submitting an affidavit or declaration that contradicts that party’s prior deposition testimony. See
Perez v. Staples Contract & Commercial LLC, 31 F.4th 560, 569 (7th Cir. 2022). “The goal of the rule is
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to preclude the manipulation of testimony to avoid an adverse summary-judgment ruling.” Id. The
“organizing principle of our sham-affidavit practice is simply stated: a genuine issue of material fact
cannot be conjured out of nothing.” James v. Hale, 959 F.3d 307, 316 (7th Cir. 2020) (emphasis in
original). With this in mind, the Court disregards certain averments in Johnson’s March 2022
declaration that contradict his December 2020 deposition testimony.
Turning to Johnson’s prima facie case, the Court examines whether Johnson has fulfilled the
similarly situated element because it is dispositive. To be similarly situated, a comparator must be
directly comparable to the plaintiff in all material respects, although precise equivalence is not
required. Bless v. Cook Cnty. Sheriff’s Office, 9 F.4th 565, 575 (7th Cir. 2021). “The purpose of the
similarly situated prong is to ‘eliminate other possible explanatory variables, such as differing roles,
performance histories, or decision-making personnel, which helps isolate the critical independent
variable—discriminatory animus.’” Marnocha, 986 F.3d at 719 (citation omitted).
Johnson presents evidence that Statewide hired four younger security guards for the
Campbell location after his employment was terminated in February 2019. Unrefuted evidence in
the record indicates that these security guards worked approximately eight to sixteen hours a week,
on average. (R. 88-3, 12/2/20, Barone Dep., at 95). Moreover, it undisputed that Johnson was the
only full-time employee at the Campbell location, and, as a full-time employee, Johnson was paid
more than the part-time employees. It is well-settled that “full-time employees are simply not
similarly situated to part-time employees,” especially when the part-time employees receive less pay.
Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1155 (7th Cir. 1997); see also Jones v. National Council of Young
Men’s Christian Assoc., 48 F.Supp.3d 1054, 1112 (N.D. Ill. 2014) (Tharp, J.). In sum, the difference in
hours and pay is material to the Court’s similarly situated inquiry. Viewing the evidence and all
reasonable inferences in Johnson’s favor, he has not presented sufficient evidence to raise a genuine

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issue of material fact in relation to his prima facie case of age discrimination. The Court grants
Statewide’s summary judgment motion based on this deficiency.
In the alternative, even if Johnson had adequately set forth a prima facie case of age
discrimination, he has not presented evidence raising a triable issue of fact that Statewide’s proffered
reason for his termination was pretext for discrimination. To show pretext, Johnson must come
forward with evidence that (1) Statewide’s reason for his termination was dishonest, and (2)
Statewide’s true reason was based on discriminatory intent. Logan v. City of Chicago, 4 F.4th 529, 537
(7th Cir. 2021). Pretext is more than faulty reasoning or bad judgment – it is a lie or a phony reason.
See Brooks, 39 F.4th at 435; Barnes v. Board of Trs. of Univ. Ill., 946 F.3d 384, 389 (7th Cir. 2020). Also,
under the first requirement, “the question is not whether the employer’s stated reason was
inaccurate or unfair, but whether the employer honestly believed the reason it has offered to explain
the discharge.” Robertson v. Dept. of Health Servs., 949 F.3d 371, 380 (7th Cir. 2020) (citations
omitted).
As stated, Statewide explains it terminated Johnson’s employment because it had eliminated
the position of supervisor at the Campbell location in February 2019. In support of its reason for
Johnson’s termination, Statewide provides the deposition testimony of Statewide’s Director of
Operations Michael Barone. Statewide also presents other evidence that it considered Johnson a
supervisor, including its unrefuted payroll and employee pay reports for the relevant time period that
indicate Johnson was a supervisor until his termination. And, as discussed, there is undisputed
evidence in the record that the other security officers at the Campbell location made less per hour
than Johnson. Barone also averred that he introduced Johnson to the Campbell location client as
the supervisor told other security guards that they reported to Johnson.
Nevertheless, Johnson testified at his deposition Barone told him in 2017 that he was no
longer a supervisor. At this stage of the proceedings, the Court must view the evidence and all
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reasonable inferences in Johnson’s favor, and thus Johnson’s testimony raises a triable fact that he
was not a supervisor at the time of his termination underscoring his argument that Statewide’s
reason for his discharge was dishonest.
Next, Johnson must present evidence raising a genuine issue of triable fact that Statewide’s
true reason for his termination was his age, which he has failed to do. See Logan, 4 F.4th at 537.
Specifically, to show Statewide’s beliefs are not credible, Johnson must “provide evidence that he
was fired for reasons other than those provided, the reasons had no grounding in fact, or were
insufficient to warrant termination.” Castetter v. Dolgencorp, LLC, 953 F.3d 994, 997 (7th Cir. 2020).
In support of his argument, Johnson contends Barone made several ageist comments directed at
him. Such remarks can raise an inference of discriminatory intent if they are made by the decisionmaker, around the time of the decision, and in reference to the adverse employment action. Brooks,
39 F.4th at 439. “When considering whether a remark is discriminatory, [courts] also consider the
context in which the remark was made.” Bagwe v. Sedgwick Claims Mgmt. Serv., Inc., 811 F.3d 866, 885
(7th Cir. 2016). The parties do not dispute that Barone was the decision-maker in relation to
Johnson’s termination.
According to Johnson, in April 2017, when he and Barone were dining at a restaurant,
Barone asked him how old he was and how much longer he wanted to work at Statewide, to which
Johnson answered that he wanted to work for a few more years. Another time when they were out
to eat in September 2017, Barone asked Johnson “you’re getting on in age now, how much longer
are you going to put up with this shit?” Not only were these comments made outside of the
workplace and in a social setting, but the timing of these 2017 statements is too temporally
attenuated from Johnson’s termination in February 2019. Equally important, these comments were
not made in connection with Johnson’s termination, but were in relation to how long Johnson
wanted to work for Statewide. Accordingly, these 2017 comments are not probative of unlawful
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discriminatory intent in relation to Statewide’s employment decision and do not defeat summary
judgment. See Castetter, 953 F.3d at 997 (“isolated comments must be contemporaneous with
termination or causally related to the termination process in order to be probative of
discrimination.”).
Next, at his deposition and in response to Statewide’s interrogatories, Johnson stated Barone
called him an “old man” from time to time. Johnson does not point to the specific timing of these
statements, although in his later-filed declaration, Johnson avers that Barone called him an old man
up until February 2019. What Johnson does not aver is whether this statement was made in
connection with his termination or in what context Barone allegedly made this statement. For
example, did Barone make this statement in a social setting like his 2017 comments or did he make
them at work? Because the details of Barone’s alleged 2019 statement(s) are unclear, they do not
constitute adequate evidence that Statewide terminated Johnson due to his age. See Ptasznik v. St.
Joseph Hosp., 464 F.3d 691, 695 (7th Cir. 2006). The Court grants Statewide’s summary judgment
motion based on Johnson’s failure to establish pretext.
Conclusion
The Court grants defendant’s summary judgment motion [84]. Civil case terminated.
IT IS SO ORDERED.
Date: 9/19/2022
Entered:

_____________________________
SHARON JOHNSON COLEMAN
United States District Judge

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