Collico v. Invacare Corporation
Filing
44
ORDER granting 31 Motion for Summary Judgment. Signed by Chief Judge Nancy J. Rosenstengel on 4/16/2020. (dhg)
Case 3:18-cv-01301-NJR Document 44 Filed 04/16/20 Page 1 of 7 Page ID #275
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARK COLLICO,
Plaintiff,
v.
Case No. 3:18-CV-1301-NJR
INVACARE CORPORATION,
Defendant.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is a Motion for Summary Judgment (Doc. 31) filed by
Defendant Invacare Corporation (“Invacare”). For the reasons set forth below, the Court
grants the Motion for Summary Judgment.
This action stems from the termination of Plaintiff Mark Collico (“Collico”) by
Invacare in May 2017 (Doc. 1). Collico alleges that Invacare violated the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., discriminating
against him on the basis of his age and retaliating against him for complaining of age
discrimination. Invacare denies that Collico’s termination was related to his age or to his
complaint and now moves for summary judgment (Docs. 11, 31).
FACTUAL BACKGROUND
Invacare is an Ohio-based manufacturer of medical devices (Doc. 33 at 1). Collico
was hired by Invacare as a salesperson in 1990, at which point he was approximately 30
years old (Id.). Collico’s territory as a salesperson included parts of Illinois and Missouri
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(Id.). Collico left Invacare to briefly work at Fox Medical, a supplier of medical equipment,
and was re-hired by Invacare in 2001 (Id.). Collico then worked at Invacare continuously
until his termination in 2017, working in the same territory in Southern Illinois and
Missouri (Id.). During that time, Collico’s performance was evaluated yearly, with
evaluations based on both sales numbers and qualitative factors. In 2012, Invacare
implemented a new Customer Relationship Management software system (“CRM”).
Collico was trained in the use of the CRM and was expected to input entries, with proper
CRM use considered as a portion of his annual evaluations.
In certain years, Collico exceeded his sales targets, while in other years, his sales
fell below the target. Generally speaking, his evaluations prior to 2015 attributed
shortfalls in sales to market conditions, rather than ascribing them to failures on the part
of Collico (E.g., Doc. 33-8 at 1). Collico’s evaluations occasionally include qualitative
feedback on his performance and steps that could be taken to improve his sales pitches,
but for the most part his evaluations prior to 2015 are fairly positive and do not indicate
that his managers at Invacare had concerns about his performance (Docs. 33-8 to 33-11).
In 2015, Collico was moved within the company, shifting from durable medical
equipment sales to the post-acute care group (Doc. 33 at 3). Collico finished 2015 well
below his sales target, and his performance evaluation indicated numerous areas where
Collico needed improvement (Doc. 33-12). In 2016, Jonathan Houston became Collico’s
supervisor (Doc. 33 at 3). Collico later stated in his deposition that after this change in
management, he felt that Houston and Dean Childers, a Senior Vice President at Invacare,
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started “headhunting” and came after Collico because he was an older employee
(Doc. 36-1 at 10).
Collico’s 2016 evaluation, conducted in January 2017, indicates continuing
dissatisfaction with Collico’s performance, noting that Houston felt that Collico “has
struggled” to have focused conversations to ascertain client needs and adjust to the
changing nature of Invacare’s business (Doc. 33-13). In April 2017, Houston placed
Collico on a Performance Improvement Plan, or PIP (Doc. 33-14). In doing so, Houston
noted that Collico had used identical text entries in describing recurring meetings in the
CRM System (Id.). The PIP comments noted that once duplicative meetings and
prospective meeting entries were removed, Collico’s weekly meetings rate was
unacceptably low (Id.). In the PIP, Collico was directed to enter meeting notes in the CRM
that accurately reflected individual meetings and to improve the way that he scheduled
and conducted meetings with client contacts (Id.). Collico was also directed to complete
certain weekly “needs assessment” forms (Id.). Collico’s PIP stated that “Failure to meet
or exceed these expectations, or any display of gross misconduct will result in
disciplinary action, up to and including termination” (Id.).
Collico called Jennifer Pebworth in Invacare’s Human Resources Department
around April 20, 2017, indicating that he wished to file a complaint regarding the PIP,
alleging that it was motivated by age discrimination (Doc. 33-1 at 20). He later reiterated
in his deposition that he saw the PIP as another way of attempting to get rid of him
(Doc. 36-1 at 11). Collico stated that he had heard from another salesperson that Dean
Childers had a list of older employees that he wanted “gone,” but Collico could not
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identify the salesperson who allegedly told him this or provide any other form of
corroboration (Id. at 15).
Collico failed to complete more than one of the required needs assessment forms
by May 5, 2017 (Doc. 33-1 at 20). In early May 2017, Houston contacted certain clients
whom Collico had indicated that he had meet with in the CRM. Two of these clients
indicated that their contact with Collico had been significantly less than what Collico had
recorded in the CRM (Doc. 33-3), Houston reported in an email to Jennifer Pebworth on
May 8, 2017. Collico was terminated by Invacare on May 11, 2017, allegedly due to
“failure to follow process and falsification of records” (Doc. 33-17).
LEGAL STANDARD
Summary judgment is only 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.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting FED.
R. CIV. P. 56(a)). Once the moving party has set forth the basis for summary judgment,
the burden then shifts to the nonmoving party who must go beyond mere allegations and
offer specific facts showing that there is a genuine issue of fact for trial. FED. R. CIV. P.
56(e); see Celotex Corp. v. Catrett, 477 U.S. 317,232-24 (1986). The nonmoving party must
offer more than “[c]onclusory allegations, unsupported by specific facts,” to establish a
genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
In determining whether a genuine issue of fact exists, the Court must view the
evidence and draw all reasonable inferences in favor of the party opposing the motion.
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Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A “court may not assess the credibility of witnesses,
choose between competing inferences or balance the relative weight of conflicting
evidence[.]” Reid v. Neighborhood Assistance Corp. of America, 749 F.3d 581, 586 (7th Cir.
2014) (quoting Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005)).
ANALYSIS
A. Applicable Law
For a successful claim of age discrimination, a plaintiff must produce evidence that
age discrimination was the but-for cause of a materially adverse employment action.
Gross v. FBL Fin. Servs., 557 U.S. 167, 176 (2009). In other words, the plaintiff must show
not merely that age was a motivating factor in the adverse action—rather, it must be
shown that absent the plaintiff’s age, the adverse action would not have occurred.
Wrolstad v. Cuna Mut. Ins. Soc’y, 911 F.3d 450, 454 (7th Cir. 2018). A plaintiff may meet
this burden by presenting evidence of age discrimination, or alternatively they may seek
to proceed under the McDonnell Douglas burden-shifting approach. Id. (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 (1973)). Under McDonnell Douglas, the burden of
proof will shift to the defendant, who must articulate a non-discriminatory reason for the
adverse action, if the plaintiff is able to show that: (1) they are a member of a protected
class; (2) they met their employer’s legitimate job expectations; (3) they suffered an
adverse employment action, and (4) similarly situated employees outside of the protected
class received more favorable treatment. E.g., Lucas v. PyraMax Bank, FSB, 539 F.3d 661,
666 (7th Cir. 2008) (citing McDonnell Douglas, 411 U.S. at 802. If the defendant is capable
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of articulating a non-discriminatory reason for the adverse action, then the plaintiff
carries the burden of showing that the stated reason was a pretext for discrimination.
Wrolstad v. Cuna Mut. Ins. Soc’y, 911 F.3d at 454.
A. Discussion
Here, Collico has not advanced evidence sufficient to allow a reasonable jury to
favor his claim, or even to shift the burden to Invacare under the McDonnell Douglas
standard. While Collico can easily show that he is over 40 and that he suffered an adverse
employment action, he fails to present evidence that he met his employer’s legitimate job
expectations or that similarly situated younger employees received more favorable
treatment. The factual record shows that Invacare had a number of documented
complaints about Collico’s work performance over a period of years and that issues only
increased over time, culminating in the alleged falsification of information that led to
Collico’s termination. Apart from cursory allegations supported only by Collico’s own
word, Collico has not presented any evidence that these complaints were not legitimate;
he has not presented any evidence of younger employees who received more favorable
treatment under similar circumstances. Accordingly, the Court is not inclined to shift the
burden to Invacare. Even if it were to do so, Invacare has advanced a number of legitimate
bases for Collico’s termination, such as his declining sales, his misuse of the CRM system,
and his falsification of data. Collico’s only response to these arguments is his own
personal feeling that his termination was motivated by age discrimination, supported
only by his own word and his mention of an anonymous employee who supposedly told
him that Dean Childers had a list of older employees that he wanted to terminate. This is
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not sufficient evidence to allow to a reasonable jury to find for Collico. Even if Collico
had somehow advanced sufficient evidence to allow a jury to find a hint of age
discrimination, Collico would still have to show that age discrimination was the but-for
cause of his termination, and he simply does not have sufficient evidence contradicting
the serious allegations of misconduct made against him by Invacare. Even if Invacare did
want to fire Collico due to his age, they would nevertheless be justified in doing so given
his falling sales, failure to comply with company guidelines on CRM use, and falsification
of data, and Collico’s brief does little to contradict these allegations.
Without delving further into the minutiae of this case, the Court can easily
conclude that Collico has fallen far short of providing evidence sufficient either to allow
this Court to shift the burden to Invacare or to allow a reasonable jury to find for Collico.
Accordingly, the Court grants summary judgment to Invacare.
CONCLUSION
For the reasons set forth above, the Court GRANTS summary judgment to
Invacare and DISMISSES this action with prejudice.
IT IS SO ORDERED.
DATED: April 16, 2020
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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