Wells et al v. EMF Corp
Filing
61
OPINION AND ORDER GRANTING IN PART and DENYING IN PART 55 RULE 56 MOTION to Strike 49 Response to Motion by Defendant EMF Corp; GRANTING 46 MOTION (Second) for Summary Judgment by Defendant EMF Corp. Clerk DIRECTED to enter final judgment in favor of Defendant EMF Corp and against Plaintiffs Rick Wells, Judy Humes and Vern Smith. Signed by Magistrate Judge Roger B Cosbey on 6/3/11. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JUDY HUMES,
Plaintiff,
v.
EMF CORP.,
Defendant.
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CAUSE NO. 1:10-CV-00070
OPINION AND ORDER
I. INTRODUCTION
Plaintiff Judy Humes, Rick Wells, and Vern Smith filed this suit against their former
employer, Defendant EMF Corp., under the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 621 et seq., asserting that EMF discriminated against them due to their age when it
terminated their employment in a purported reduction in force (“RIF”).1 (Docket # 1.) On
December 1, 2010, the Court granted EMF’s first motion for summary judgment in part and
dismissed Wells’s and Smith’s claims. (Docket # 40.) Humes’s age discrimination claim,
however, survived the summary judgment motion because, after Humes established a prima
facie case, EMF failed to produce a legitimate, non-discriminatory reason for including her in the
RIF. (Docket # 40.)
Since EMF filed its first summary judgment motion well in advance of the dispositive
motion deadline, the Court granted EMF leave to file a second motion for summary judgment
pertaining to Humes’s age discrimination claim. (Docket # 40.) Now before the Court is EMF’s
1
Accordingly, subject matter jurisdiction arises under 28 U.S.C. § 1331. Jurisdiction of the undersigned
Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting. (See Docket # 15.)
second motion for summary judgment and corresponding motion to strike, seeking to dispose of
Humes’s claim. (Docket # 46, 55.) The motions are both fully briefed. (Docket # 47-51, 53-54,
56-59.)
Because Humes’s opposition to the motion for summary judgment relies upon evidence
subject to EMF’s motion to strike, the Court will first turn to that motion. For the following
reasons, EMF’s motion to strike will be GRANTED IN PART and DENIED IN PART, and its
motion for summary judgment will be GRANTED.
I. MOTION TO STRIKE
A. Applicable Law
Federal Rule of Civil Procedure 56 states that affidavits filed in support of summary
judgment “must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4). “An affidavit not in compliance with Rule 56 can neither lend support
to, nor defeat, a summary judgment motion.” Paniaguas v. Aldon Cos., No. 2:04-cv-468-PRC,
2006 WL 2568210, at *4 (N.D. Ind. Sept. 5, 2006) (citing Zayre Corp. v. S.M. & R. Co., 882
F.2d 1145, 1148-49 (7th Cir. 1989); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th
Cir. 1989)).
“[W]hen considering a motion to strike portions of an affidavit in support of a motion for
summary judgment, courts will only strike and disregard the improper portions of the affidavit
and allow all appropriate recitations of fact to stand.” Id.; see also Stromsen v. Alumna Shield
Indus., Inc., No. 89-C5036, 1993 WL 34727, at *4 (N.D. Ill. Feb. 8, 1993); Toro Co. v. Krouse,
Kern & Co., 644 F. Supp. 986, 989 (N.D. Ind. 1986); CHARLES ALAN WRIGHT, ET AL., FEDERAL
2
PRACTICE & PROCEDURE § 2738 (3d ed. 2006). Specifically, the following statements are not
properly included in an affidavit and should be disregarded: (1) conclusory allegations lacking
supporting evidence, see DeLoach v. Infinity Broad., 164 F.3d 398, 402 (7th Cir. 1999); (2) legal
argument, see Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir. 1985); (3) self-serving statements
without factual support in the record, see Shank v. William R. Hague, Inc., 192 F.3d 675, 682
(7th Cir. 1999); (4) inferences or opinions not “grounded in observation or other first-hand
experience,” Visser v. Packer Eng’g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991); (5) mere
speculation or conjecture, see Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999), and (6)
statements or conclusions that “contradict prior deposition or other sworn testimony”, without
explaining the contradiction or attempting to resolve the disparity, see Buckner v. Sam’s Club,
Inc., 75 F.3d 290, 292 (7th Cir. 1996) (collecting cases); Babrocky v. Jewel Food Co., 773 F.2d
857, 861 (7th Cir. 1985).
B. Analysis
In its motion to strike, EMF seeks to strike portions of Humes’s Affidavit, portions of the
Affidavits of four other former employees, and Humes’s exhibit offering her attorney’s
mathematical analysis of EMF’s income statements. For the following reasons, EMF’s motion
will be granted in part and denied in part.
1. Humes’s Affidavit.
a. Paragraph 2. EMF seeks to strike as immaterial the second paragraph of Humes’s
Affidavit, which states that in 2008 she and her husband filed more than fifty claims for benefits
with EMF’s health insurance plan. Generally, an employer’s attempt to reduce operating costs
through cutting salary or benefit expenses is a legitimate, nondiscriminatory justification for
3
terminating employees, provided it is not simply a proxy for age. See Hazen Paper Co. v.
Biggins, 507 U.S. 604, 613 (1993). Here, Humes offers her medical claims experience as an
arguable attempt to establish that EMF used medical costs synonymously with age. Because
EMF’s argument ultimately goes to the weight and not the admissibility of this evidence,
however, see, e.g., Dority v. City of Chicago, No. 98 C 4893, 2001 WL 1155286, at *3 (N.D. Ill.
Sept. 28, 2001), its motion to strike is DENIED concerning this paragraph.
b. Paragraph 5. Humes states in this paragraph that upon her information and belief,
her employment file was removed from EMF shortly after she filed an EEOC charge. EMF
seeks to strike this paragraph because it is not based upon Humes’s personal knowledge but
rather upon her “information and belief.” Indeed, Federal Rule of Civil Procedure 56(c)(4)
provides that affidavits “must be made on personal knowledge”; therefore, “[a]ffidavits based on
‘information and belief’—facts that the affiant believes are true, but which the affiant does not
know are true—are not proper.” Abdullah v. Frank, No. 04C1181, 2007 WL 636185, at *5 (E.D.
Wis. Feb. 26, 2007) (citing Toro, 827 F.2d at 162-63; Friedel v. City of Madison, 832 F.2d 965,
970 (7th Cir. 1987)); see also Weiss v. Cooley, 230 F.3d 1027, 1034 (7th Cir. 2000) (noting that
an affidavit that stated various facts “on information and belief” was not enough to satisfy the
personal knowledge requirement). Therefore, the motion to strike is GRANTED with respect to
paragraph 5.
c. Paragraph 7. Here, Humes states that at no time during her employment did Tami
Kipfer, the substantially younger employee who absorbed her duties, “oversee” or “supervise”
her work. EMF seeks to strike this statement, arguing that it contradicts Humes’s deposition
4
testimony concerning Kipfer’s coordination of the ISO-9000 Program2 in which Humes admitted
that Kipfer would “tell [her] what things had to be done [and] . . . didn’t have to be done.”
(Humes Dep. 37.) EMF’s motion is DENIED, as Humes’s statement in her Affidavit concerning
supervision or oversight does not necessarily contradict her deposition testimony about her
communications with Kipfer pertaining to the ISO-9000 Program tasks. See, e.g., DeCalonne v.
G.I. Consultants, Inc., 197 F. Supp. 2d 1126, 1138 (N.D. Ind. 2002) (acknowledging that a party
cannot create an issue of fact merely by submitting an affidavit that contradicts an earlier
deposition, but denying the motion to strike because there was no actual conflict between
plaintiff’s affidavit and deposition testimony); see generally Osborn v. Consol. Rail Corp., No.
3:05CV161CAN, 2006 WL 37016, at *2 (N.D. Ind. Jan. 4, 2006) (denying motion to strike
plaintiff’s affidavit that appeared inconsistent with his deposition testimony, stating that the
court “may simply disregard the inconsistent statements in the affidavit without striking
otherwise admissible evidence”).
d. Paragraph 8. Humes states in this paragraph that upon her information and belief
Kipfer never held a “management” position with EMF. As discussed with respect to paragraph
5, an affidavit may not be made on “information and belief”, and EMF’s motion to strike this
evidence is therefore GRANTED.
e. Paragraph 9. EMF’s motion to strike the first sentence of paragraph 9, which states
that upon her information and belief Kipfer never held the position of “Plant Clerk” at EMF’s
Angola facility, is also GRANTED for the reasons set forth with respect to paragraph 5 above.
The motion is DENIED, however, as to the second sentence of paragraph 9, stating that “Betty
2
See footnote 5 infra.
5
Locke was Plant Clerk”, since it is based upon personal knowledge, not information and belief.
2. Rick Wells’s Affidavit
a. Paragraphs 7, 8, and 12. EMF seeks to strike paragraphs 7, 8, and 12 of the
Affidavit of Rick Wells, EMF’s former Purchasing Manager, pertaining to his receipt of weekly
reports on the status of the business, the cause of the Mississippi plant closure, and whether
Kipfer ever held a “management” position, because they are conditioned upon Wells’s
information and belief. For the reasons set forth above with respect to paragraph 5 of Humes’s
Affidavit, the motion to strike is GRANTED.
b. Paragraphs 13, 14, and 15. Similarly, the motion to strike the first sentences of
paragraphs 13, 14, and 15, concerning whether Kipfer was responsible for estimating, whether
she ever held the “Plant Clerk” position, and whether she wrote job descriptions and work
instructions, is GRANTED because they too are conditioned upon Wells’s information and
belief.
In contrast, the second sentences of those paragraphs—stating that Dave Daugherty was
responsible for estimating, that Becky Locke was Plant Clerk, and that Kipfer as the ISO-9000
Coordinator was responsible for ensuring that the managers provided job descriptions and
instructions—survive, since they are based upon personal knowledge, rather than information
and belief. Wells was the Purchasing Manager for all EMF facilities (Wells’s Aff. ¶ 2), and
“[c]ommon sense dictates that if an affiant is an employee of a company, [he] has personal
knowledge of events and circumstances that occurred at the company within [his] sphere of
observation.” Westchester Fire Ins. Co. v. Am. Wood Fibers, Inc., No. 2:03-CV-178-TS, 2006
WL 752584, at *4 (N.D. Ind. Mar. 21, 2006) (quoting Davis v. Valley Hospitality Servs., LLC,
6
372 F. Supp. 2d 641, 653 (M.D. Ga. 2005)). Therefore, the motion to strike is DENIED with
respect to the second sentences of paragraphs 13, 14, and 15.
3. Vern Smith’s Affidavit
a. Paragraph 7. In this paragraph, Vern Smith, EMF’s former Plant Manager, states:
“In September and October, 2008, business was slow, but I did not believe that it was long-term
and any more than what we normally experienced.” EMF claims that this statement is mere
speculation and thus should be stricken. However, Smith, as Plant Manager, would have
personal knowledge that EMF’s business was slow at the time, Westchester Fire, 2006 WL
752584, at *4, and his statement about the duration or seriousness of the circumstances represent
his “own thoughts or intentions, which are within his personal knowledge.” McKay v. Town &
Country Cadillac, Inc., No. 97 C 2102, 2002 WL 531356, at *7 (N.D. Ill. Apr. 9, 2002)
(emphasis omitted). Accordingly, the motion to strike is DENIED.
b. Paragraph 8. Here, Smith states that he “was not advised of any lay-offs, reductions in
staff, or cost-cutting measures at any of [EMF’s] facilities.” EMF seeks to strike this statement
as irrelevant. This argument, however, goes more to the weight of this evidence than its
admissibility, see, e.g., Simmons v. W. Suburban Kidney Ctr., No. 89 C 8264, 1991 WL 32759,
at *3-4 (N.D. Ill. Mar. 6, 1991), and therefore the motion to strike is DENIED.
c. Paragraph 10. In this paragraph, Smith states to his “knowledge and belief” that
performance reviews were conducted for Humes nearly every year and that he “would have”
forwarded copies of her reviews to the corporate office for placement in her personnel file. EMF
seeks to strike this statement for lack of personal knowledge and because it speaks to what Smith
might have done, rather than what actually happened. See Abdullah, 2007 WL 636185, at *5
7
(explaining that affidavits based on facts that the affiant believes are true, but the affiant does not
know are true, are improper). EMF’s argument is correct, and the motion to strike this evidence
is GRANTED.
4. Judy Hicks’s Affidavit
a. Paragraph 4. EMF seeks to strike the first sentence of paragraph 4 of the Affidavit
of Judy Hicks, a former EMF employee who absorbed Smith’s duties as Plant Manager, which
states that upon her information and belief Kipfer never held the position of “Plant Clerk” at
EMF’s Angola facility. The motion to strike is GRANTED for the reasons set forth with respect
to paragraph 5 of Humes’s Affidavit. The motion is DENIED, however, with respect to the
second sentence of paragraph 4, stating that “Betty Locke was Plant Clerk”, since Hicks, as Plant
Manager, would have personal knowledge of EMF’s employees. See Westchester Fire, 2006 WL
752584, at *4.
b. Paragraph 5. In this paragraph Hicks states that Kipfer was unable to assume the
position of Plant Clerk in October 2008 without extensive training and then identifies who
assisted with that training. Again, the motion to strike is DENIED, because Hicks, as Plant
Manager, was responsible for supervising Kipfer (Hicks Aff. ¶ 6), and thus would have personal
knowledge of her training and performance. See Westchester Fire, 2006 WL 752584, at *4.
c. Paragraph 9. Here, Hicks reports that as Plant Manager she was advised of EMF’s
business conditions and production activity. EMF seeks to strike this statement, asserting that it
is irrelevant and hearsay. Of course, EMF’s relevancy argument goes more to the weight of this
evidence than its admissibility, see, e.g., Simmons, 1991 WL 32759, at *3-4, and its hearsay
argument is unpersuasive, since this paragraph is not an out-of-court statement offered to prove
8
the truth of the matter asserted. See Fed. R. Evid. 801(c). Therefore, the motion to strike is
DENIED.
5. Mary Levitz’s Affidavit
a. Paragraphs 2 and 3. In these paragraphs, Mary Levitz, a former employee, reports
a conversation she had with Dick Poe, EMF’s owner and President, concerning her upcoming
hip surgery.3 She states that Poe asked her if EMF’s health insurance was paying for the surgery
and that when she responded that Medicare was covering it, he replied that then it was “okay”
for her to take the time off. EMF asserts that these paragraphs constitute hearsay and are
irrelevant.
These paragraphs, however, are admissible as an admission by a party-opponent and thus
are non-hearsay. See Fed. R. Civ. P. 801(d)(2); see, e.g., Haiman v. Vill. of Fox Lake, 79 F.
Supp. 2d 949, 953 (N.D. Ill. 2000). Furthermore, EMF’s relevancy argument goes more to the
weight of this evidence than its admissibility. See, e.g., Simmons, 1991 WL 32759, at *3-4.
Therefore, the motion to strike is DENIED.
6. Humes’s Attorney’s Mathematical Analysis of EMF’s Income Statements
Finally, EMF seeks to strike Humes’s exhibit offering her attorney’s mathematical
analysis of EMF’s income statements. Indeed, “[s]upporting materials designed to establish
issues of fact in a summary judgment proceeding ‘must be established through one of the
vehicles designed to ensure reliability and veracity—depositions, answers to interrogatories,
admissions and affidavits. When a party seeks to offer evidence through other exhibits, they
must be identified by affidavit or otherwise made admissible in evidence.’” Friedel v. City of
3
Mr. Poe is now deceased. (Mem. in Supp. of Pl.’s Opp’n 11.)
9
Madison, 832 F.2d 965, 970 (7th Cir. 1987) (quoting Martz v. Union Labor Life Ins. Co., 757
F.2d 135, 138 (7th Cir. 1985)); see Cox v. Nat’l Football League, 29 F. Supp. 2d 463, 468 (N.D.
Ill. 1998) (denying motion to strike exhibit setting forth a compilation of raw data where counsel
provided an affidavit that properly authenticated the compilation as a business record); see also
Cent. State, Se. & Sw. Areas Pension Fund v. Transp. Serv. Co., No. 00 C 6181, 2009 WL
424145, at *3-6 (N.D. Ill. Feb. 17, 2009) (noting that plaintiff’s exhibit consisting of a
compilation of defendant’s business records was submitted with an affidavit explaining how the
compilation was created). Here, Humes’s exhibit was not accompanied by an affidavit.
Accordingly, the motion to strike this evidence is GRANTED.
C. Conclusion
Accordingly, EMF’s motion to strike is GRANTED IN PART and DENIED IN PART.
The Court now turns to EMF’s motion for summary judgment.
III. FACTUAL AND PROCEDURAL BACKGROUND4
EMF is a small business headquartered in Angola, Indiana, with manufacturing facilities
in Indiana, Kentucky, and Mississippi. (Sanders Aff. ¶ 3.) It manufactures custom wiring
harnesses, fluorescent lampholders, and specialty molded connectors for a variety of industries,
including appliance, vending, refrigeration, lighting, motors, controls, air conditioning, heating,
and automotive. (Sanders Aff. ¶ 3.)
EMF states that it began to experience challenging economic circumstances in 2007, and
it closed one of its Mississippi plants by the end of that year. (Sanders Aff. ¶¶ 5, 6.) From 2007
4
For summary judgment purposes, the facts are recited in the light most favorable to Humes, the
nonmoving party. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
10
to 2008, EMF lost $1,000,000 in business, and from 2008 to 2009, an additional $4,000,000 in
business. (Sanders Aff. ¶ 6.) As a result, beginning in 2007, EMF scaled back its manufacturing
and office operations by downsizing approximately 120 employees. (Sanders Aff. ¶¶ 5, 7.)
Approximately 57% of the downsized employees were under forty years old; conversely, 77% of
the employees who remained employed after the downsizing were over forty years old, and 11%
of the remaining employees were over sixty years old. (Sanders Aff. ¶ 8.) EMF explains that it
restructured its office staff as a result of the reduction in the number of manufacturing employees
it supported and the decline in business. (Sanders Aff. ¶ 7.)
In that vein, on June 27, 2008, Howard Sanders, EMF’s Vice President, advised Dick
Poe, EMF’s owner and President, that unless things changed drastically, EMF may have to go to
a four-day work week within the next two weeks because it could not make payroll. (Sanders
Supp. Aff. ¶ 9, Ex. A.) Then, on September 16, 2008, Sanders advised Poe that he needed to
terminate his temporary help and go to a four-day “rotated week.” (Sanders Supp. Aff. ¶ 10, Ex.
B.) Nevertheless, despite these economic challenges, EMF hired at least twenty-six employees
in 2007 and thirty-six employees in 2008. (Identification of Supporting Documents Ex. D (#
0378-86).)
EMF asserts that in response to the challenging economic circumstances it faced in
October 2008, Sanders and Poe analyzed EMF’s operations and identified areas that could be
restructured to save money. (Sanders Supp. Aff. ¶ 11.) In doing so, EMF claims that it
determined that Tami Kipfer, who earned $15.02 per hour and currently served as the ISO-9000
Coordinator and Assistant Quality Manager, could absorb the Plant Clerk job duties of Humes,
who earned $13.00 per hour, because Kipfer (1) was proficient in numerous significant areas,
11
including the ISO-9000 Program5 and purchasing, and Humes was not; (2) had previous
experience as a Plant Clerk; and (3) had overseen Plant Clerks in her role of ISO-9000
Coordinator. (Sanders Supp. Aff. ¶¶ 12, 13.) Thus, according to EMF, Sanders and Poe
determined that Kipfer could absorb Humes’s Plant Clerk job while continuing to perform her
duties as ISO-9000 Coordinator and Assistant Quality Manager. (Sanders Supp. Aff. ¶ 14.)
Therefore, Humes, who was hired by EMF in January 1983, was terminated on October
10, 2008, “due to a down turn in business.” (Sanders Aff. ¶ 11, Ex. B; Humes Dep. 31.) At the
time of her termination, Humes was sixty-two years old, had a high school diploma, and had
served as the Plant Clerk for the Hamilton facility for ten years, that is, since 1998. (Sanders Aff.
¶ 22; Answer ¶ 25; Humes Dep. 29, 31-33, 34.) Prior to serving as Plant Clerk, Humes was a
production worker and a Lead Inspector, which required her to conduct quality checks on parts
and oversee activities in the inspection area. (Humes Dep. 31-33; Kipfer Aff. ¶ 3.) In her job as
Plant Clerk, Humes’s job duties included following the instructions of the Plant Manager,
making copies of documents and distributing those documents, computer data entry,
coordinating schedules and time cards, assisting with the inventory process, shoveling sidewalks,
retrieving documents at the request of the corporate office, and helping out in production and
testing. (Humes Dep. 35-36.) She did not, however, perform any estimating, coordination of
CAD work, purchasing, or ISO-9000 Program leadership. (Humes Dep. 40-41.)
Throughout her tenure at EMF, all of Humes’s annual performance reviews were
positive, and she was never issued a disciplinary warning. (Humes Aff. ¶ 3.) In fact, EMF’s
5
EMF began seeking ISO-9000 Program certification in 1995. ISO-9000 certification is a preferred
industry standard which, when achieved, certifies that a business is viable, efficient, and produces a quality product.
(Sanders Supp. Aff. ¶ 3.)
12
“Employee Termination Report” stated that it would rehire Humes, would recommend her
“without reservation”, and rated Humes’s performance as “good” in all categories. (Sanders Aff.
Ex. B.)
Following her discharge, Humes’s job duties were absorbed by Kipfer, who was fifty
years old, had a high school education, and, like Humes, had worked at EMF since 1983.
(Sanders Aff. ¶ 12; Humes Dep. 31-33; Kipfer Aff. ¶ 2; Def.’s Br. In Supp. 6.) Kipfer had
started as a production worker and then, about one year before Humes received the same position
on another shift, became a Lead Inspector. (Kipfer Aff. ¶ 3.) In 1985, however, in order to spend
more time with her child, she became a wire cutter, serving in that position for ten years. (Kipfer
Aff. ¶ 4.)
In 1997, Kipfer received the position of “Office Clerk”.6 (Identification of Supporting
Documents Ex. D4 (# 0279); Humes Dep. 51.) Less than a year later, Kipfer became the
Purchasing Clerk, and was responsible for clerical functions necessary to facilitate the
purchasing of materials for all EMF facilities. (Identification of Supporting Documents Ex. D (#
0285); Wells Aff. ¶¶ 9, 10.) Then, in 1999, Kipfer became the Assistant Quality Control
Manager and ISO-9000 Coordinator for the EMF facilities, which required her to guide EMF
through the ISO-9000 certification process.7 (Identification of Supporting Documents Ex. D (#
0257); Sanders Supp. Aff. ¶ 5.) She received on-the-job training for the ISO-9000 Coordinator
6
EMF contends that Kipfer was promoted to “Plant Clerk” in 1997 (Kipfer Aff. ¶ 6; Def.’s Br. in Supp. 4),
rather than “Office Clerk”. (Def.’s Br. in Supp. 5; Sanders Supp. Aff. ¶ 12.) Nonetheless, Humes and several other
former employees state another employee, Betty Locke, served as Plant Clerk for the Angola plant (Hicks Aff. ¶ 4;
Humes Aff. ¶ 9; Wells Aff. ¶ 14; Humes Dep. 51), and Kipfer’s personnel file reflects the title of “Office Clerk” not
“Plant Clerk”. (Identification of Supporting Docs. Ex. D (# 0279).)
7
EMF refers to Kipfer as “Quality Manager” and “ISO Management Representative” (Kipfer Aff. ¶¶ 8, 9;
Sanders Supp. Aff. ¶ 5), but her annual performance review lists her title as “ISO Coordinator/Assistant QC.”
(Identification of Supporting Docs. D (# 0257).)
13
duties and also took some classes at local universities. (Sanders Supp. Aff. ¶ 7; Kipfer Aff. ¶ 9.)
She contends that her work in Quality Control and as the ISO-9000 Coordinator involved
workplace safety, estimating, and coordinating with engineers regarding CAD prints. (Kipfer
Aff. ¶ 11.) Although Kipfer instructed Humes on the ISO-9000 Program process, telling her
“what things had to be done . . . [and] didn’t have to be done” for that Program (Humes Dep. 37),
at no time did Kipfer ever “oversee” or “supervise” Humes. (Humes Aff. ¶ 7.) In fact, Kipfer
required extensive training in order to assume the position of Plant Clerk following Humes’s
termination.8 (Hicks Aff. ¶ 5.)
Kipfer, in contrast to Humes, received at least seven disciplinary warnings for
absenteeism from 1993 to 2001. (Identification of Supporting Docs Ex. D (# 0280, 0282, 0235,
0232, 0280, 0289-91, 0211, 0296, 0297.) Similarly, in her 1986, 1991-96, 2000, 2001, and 2006
annual performance reviews, Kipfer was criticized for her absenteeism and was cautioned that
her attendance, reliability, dependability, or punctuality needed improvement. (Identification of
Supporting Docs. D (# 0254-55, 0244-51, 0222-31, 0233-34, 0257-60, 0324-27, 0285-86).) In
fact, in the following 2001 memo, Poe questioned why Kipfer had not already been terminated
and then limited her Quality Control responsibilities:
1. Tami’s file is rife with attendance problems and she really shouldn’t be
working here based upon the number of write-ups she has received in the past 17
years. What is the problem here?
2. She has this constant Monday no-show problem and is not getting any
better—even though she has been warned time and again.
3. Her excessive and un-improving attendance problem has caused us to
8
In October and November 2009, Kipfer received a verbal and written warning for “disobedience” as a
result of using an EMF computer for personal use. (Hicks Aff. ¶ 6.) About a year later, she was transferred out of
the Plant Clerk position. (Hicks Aff. ¶ 8.)
14
place Tami under supervision of Ernie Hughes, who will take over as Director of
Quality Control and Safety and will be looking over all quality programs and
procedures Tami had under her wing.
4. Tami will still handle records and some paper work, but will report to
Ernie and work with him to achieve EMF’s quality goals.
5. This transfer of responsibility should be construed as a final warning to
Tami, who has a decades-long problem of poor attendance and no really good
excuses as to why it continues.
6. I hope Tami understands the seriousness of her tardiness and will take
appropriate action in the future to retain her job. If not, we will have no other
choice than to terminate her employment.
(Identification of Supporting Docs. Ex. D (# 0296).) Nevertheless, Kipfer’s annual performance
reviews were positive in all other categories. (Identification of Supporting Docs. Ex. D (# 025455, 0244-51, 0222-31, 0233-34, 0257-60, 0324-27, 0285-86).)
About the time EMF terminated Humes, it also terminated Purchasing Manager Rick
Wells, who was fifty-eight years old, and Plant Manager Vern Smith, who was sixty-one years
old, “due to a down turn in business.”9 (Sanders Aff. ¶¶ 9, 13, Exs. A, C.) Wells’s job duties
were absorbed by Buyer David Daughtery, who was forty-one years old, and IT Manager Kane
Pyley, who was fifty-one years old. (Sanders Aff. ¶ 10.) Smith’s job duties were absorbed by
Manager Judy Hicks, who was fifty-two years old, and Sanders, who was sixty-two years old.
(Sanders Aff. ¶ 14.) Humes also reports that Lloyd Locke and Dennis Hickman, two other
employees about her age or older, were terminated, although she does not provide any more
specific information about these employees or the circumstances of their termination.10 (Humes
9
Smith was offered a position at EMF’s Mississippi facility, but he declined. (Sanders Aff. ¶ 15.)
10
In an apparent effort to link the use of EMF’s health insurance to her age discrimination claim, Humes
also points out that she and her husband, who had been diagnosed with cancer, filed more than fifty claims for
benefits with the EMF health insurance plan in 2008. (Humes Aff. ¶ 2; Humes Dep. 48.) She further reports that
15
Dep. 105, 118.)
Humes, together with Wells and Smith, filed the instant suit under the ADEA on March
9, 2010, alleging that EMF discriminated against them on the basis of their age when it
terminated their employment. (Docket # 1.) Wells’s and Smith’s claims were dismissed in
response to EMF’s first summary judgment motion when they failed to establish a prima facie
case of age discrimination. (Docket # 40.) Humes’s claim, however, survived because she
established a prima facie case and EMF then failed to produce a legitimate, non-discriminatory
reason for including her in the RIF. (Docket # 40.) Since EMF filed its first summary judgment
motion well in advance of the dispositive motion deadline, the Court granted EMF leave to file a
second motion for summary judgment with respect to Humes’s claim, which is now before the
Court. (Docket # 40, 46.)
IV. STANDARD OF REVIEW
Summary judgment may be granted only if there are no disputed genuine issues of
material fact. Payne, 337 F.3d at 770. When ruling on a motion for summary judgment, a court
“may not make credibility determinations, weigh the evidence, or decide which inferences to
draw from the facts; these are jobs for a factfinder.” Id. The only task in ruling on a motion for
summary judgment is “to decide, based on the evidence of record, whether there is any material
Smith, who had been battling heart problems, filed approximately twelve claims for health benefits that same year;
that Wells was terminated shortly after receiving a cancer diagnosis; and that Hickman went in for a surgery and
received a message that he was terminated when he returned home. (Humes Dep. 118; Smith Aff. ¶ 2.)
In that same theme, Humes has produced evidence that Mary Levitz, a former employee, discussed with
Poe her need to take time off for her upcoming hip surgery, and he asked whether EMF’s insurance was paying for
it. (Levitz Aff. ¶¶ 2, 3.) When Levitz responded that the surgery was covered by Medicare, Poe said that as long as
EMF did not have to pay for the medical insurance costs related to her surgery, he was okay with her taking the time
off. (Levitz Aff. ¶¶ 2, 3.) Similarly, at some point earlier, Poe told Kipfer that she should lose some weight and “do
better” on her health because she was “costing the company a lot of money.” (Humes Dep. 47-48.)
16
dispute of fact that requires a trial.” Waldridge v. Am. Hoechst, 24 F.3d 918, 920 (7th Cir. 1994).
If the evidence is such that a reasonable factfinder could return a verdict in favor of the
nonmoving party, summary judgment may not be granted. Payne, 337 F.3d at 770. A court must
construe the record in the light most favorable to the nonmoving party and avoid “the temptation
to decide which party’s version of the facts is more likely true[,]” as “summary judgment cannot
be used to resolve swearing contests between litigants.” Id. However, “a party opposing
summary judgment may not rest on the pleadings, but must affirmatively demonstrate that there
is a genuine issue of material fact for trial.” Id. at 771.
V. DISCUSSION
A. The ADEA
The ADEA “prohibits employers from firing workers who are 40 or older on the basis of
their age.” Martino v. MCI Commc’ns Servs., Inc., 574 F.3d 447, 452 (7th Cir. 2009). A plaintiff
suing under the ADEA may establish discrimination directly or indirectly, the latter through the
approach used in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Here, Humes
advances her claims solely under the indirect method.
Generally, to establish a prima facie case of age discrimination under the indirect method
in a traditional RIF, a plaintiff must show that: (1) she is forty or older, (2) her performance met
the company’s legitimate expectations, (3) despite her performance she was subject to an adverse
employment action, and (4) the company treated similarly situated employees outside of the
protected class more favorably. Martino, 574 F.3d at 453; Balderston v. Fairbanks Morse
Engine Div. of Coltec Indus., 328 F.3d 309, 321 (7th Cir. 2003). However, in a RIF “where the
dismissed employee’s duties are absorbed by another employee or employees rather than
17
eliminated,” the Seventh Circuit Court of Appeals has applied a modified version of the fourth
prong of the McDonnell Douglas test, referring to it as the “mini-RIF variation”. Petts v.
Rockledge Furniture, LLC, 534 F.3d 715, 725 (7th Cir. 2008). Under this variation, a plaintiff
must establish as the fourth prong of the test that her “duties were absorbed by employees not in
the protected classes.” Merillat, 470 F.3d at 690; see Filar v. Bd. of Educ. of the City of Chicago,
526 F.3d 1054, 1060 (7th Cir. 2008).
If the plaintiff successfully establishes a prima facie case, the burden then shifts to the
defendant to provide a legitimate, nondiscriminatory reason for the challenged employment
action. McDonnell Douglas, 411 U.S. at 802; Martino, 574 F.3d at 453. Once the defendant has
done so, the burden shifts back to the plaintiff to show that the proffered reason is merely a
pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; Martino, 574 F.3d at 453.
The focus for a pretext inquiry is “whether the employer’s stated reason was honest, not
whether it was accurate, wise, or well-considered.” Ptasznik v. St. Joseph Hosp., 464 F.3d 691,
696 (7th Cir. 2006) (quoting Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000)); see also
Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417 (7th Cir. 2006) (“[T]he question in a
discrimination case is not whether the employer’s stated nondiscriminatory ground for the action
of which the plaintiff is complaining is correct but whether it is the true ground of the
employer’s action rather than being a pretext for a decision based on some other, undisclosed
ground.”). “An employer’s justification may be considered pretextual where the plaintiff
demonstrates that it had no basis in fact, it did not actually motivate the decision to terminate
employment, or it was insufficient to motivate that decision.” Radentz v. Marion Cnty., __ F.3d
__, 2011 WL 1237931, at *3 (7th Cir. Apr. 5, 2011). Simply put, pretext is “a deliberate
18
falsehood.” Forrester, 453 F.3d at 419.
“Pretext may be established directly with evidence that [the employer] was more likely
than not motivated by a discriminatory reason, or indirectly by evidence that the employer’s
explanation is not credible.” Jackson v. E.J. Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999); see
also Forrester, 453 F.3d at 417-18; Peters v. Renaissance Hotel Operating Co., 307 F.3d 535,
548 (7th Cir. 2002). Ultimately, the plaintiff proceeding indirectly must also “provide evidence
of at least an inference that the real reason for [her] dismissal was discriminatory.” Jackson, 176
F.3d at 983; see Brown v. Ill. Dept. of Natural Res., 499 F.3d 675, 683 (7th Cir. 2007); see also
Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315 (7th Cir. 2011) (“[A]n employer who
advances a fishy reason takes the risk that disbelief of the reason will support an inference that it
is a pretext for discrimination.”).
However, “at summary judgment the plaintiff is not required to establish pretext and
provide evidence of a discriminatory motive by the defendant . . . . This level of proof is only
required when a plaintiff’s case is submitted to a finder of fact.” Rudin v. Lincoln Land Cmty.
Coll., 420 F.3d 712, 726 (7th Cir. 2005). Rather, in order to survive a motion for summary
judgment, the plaintiff “need only produce evidence from which a rational factfinder could infer
that the company lied about its proffered reasons for [her] dismissal.” Id.; see also Forrester, 453
F.3d at 417; Alexander v. Wis. Dept. of Health & Family Servs., 264 F.3d 673, 682-83 (7th Cir.
2001); Jackson, 176 F.3d at 984.
B. Discussion
Here, the Court has already concluded in its Opinion and Order dated December 1, 2010,
that Humes easily establishes a prima facie case of age discrimination under the McDonnell
19
Douglas indirect method. She was sixty-two years old when EMF terminated her from the Plant
Clerk position; additionally, EMF reflected on its Employee Termination Report that her
performance was “good” and that it would rehire her and recommend her “without reservation”;
and finally, her duties were absorbed by Kipfer, who at fifty years old was “substantially
younger” than Humes.11
Since Humes successfully establishes a prima facie case, the burden of production then
shifts to EMF to provide a legitimate, nondiscriminatory reason for the challenged employment
action. McDonnell Douglas, 411 U.S. at 802; Martino, 574 F.3d at 453. EMF states that it
terminated Humes as part of a company-wide RIF “due to a down turn in business.” (Sanders
Aff. Ex. B.) Of course, generally speaking, “[a]n economic downturn in the industry is a
legitimate, non-discriminatory reason for a reduction in force.” Owens v. Teleperformance USA,
No. 04 C 3645, 2009 WL 3719411, at *6 (N.D. Ill. Nov. 4, 2009) (citing Ritter v. Hill’N Dale
Farm, Inc., 231 F.3d 1039, 1043-44 (7th Cir. 2000)).
Moreover, EMF now explains that it included Humes, rather than Kipfer, in the RIF
because Kipfer had previous experience as a Plant Clerk, experience overseeing Plant Clerks in
her role as ISO-9000 Coordinator, and in general, a superior skill set. As a result, EMF has
satisfied its burden of production to provide a legitimate, nondiscriminatory reasons for
including Humes in the RIF. See Petts, 534 F.3d at 726 (finding that defendant had offered a
legitimate reason for plaintiff’s discharge where it explained why it chose to eliminate plaintiff
11
“In the age discrimination context, the fact that a plaintiff is replaced by someone ‘substantially younger’
is a reliable indicator of age discrimination.” Balderston, 328 F.3d at 321-22. “The Seventh Circuit has defined
‘substantially younger’ as generally ten years younger.” Id.; see also Tubergen v. St. Vincent Hosp. & Health Care
Ctr., 517 F.3d 470, 475 n.4 (7th Cir. 2008) (“Under the ADEA, in the case of younger employees that fall above the
age of forty, the age difference must be ten years or greater in order to be presumptively substantial.”).
20
in the RIF rather than another employee); Filar, 526 F.3d at 1063 (same); Merillat, 470 F.3d at
692-93 (same); Ritter, 231 F.3d at 1043-44 (same); Miller v. Borden, Inc., 168 F.3d 308, 314
(7th Cir. 1999) (same); Weide v. Swiss Re Life & Health Am., Inc., No. 1:07 CV 328, 2010 WL
3927591, at *7 (N.D. Ind. Oct. 1, 2010) (“The Seventh Circuit has . . . held that an employer’s
statement that it chose to terminate a plaintiff and retain another employee who possessed the
company’s desired skill set qualifies as an articulation of a legitimate non-discriminatory
rationale.” (citing Merillat, 470 F.3d at 693)).
Accordingly, the burden shifts back to Humes to show that EMF’s proffered reason is
merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; Martino, 574 F.3d at
453. “Even if the reduction was otherwise bona fide, a plaintiff may show pretext by
demonstrating that the specific reasons given for including her in the reduction were pretextual.”
Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1012-13 (7th Cir. 2000); see Graber v. Mad
Brewer, Inc., __ F. Supp. 2d __, 2011 WL 759746, at *19 (N.D. Ind. Feb. 24, 2011) (“To show
that the employer’s reason is unworthy of credence, a plaintiff ‘must specifically refute the facts
which allegedly support the employer’s proffered reasons.’” (quoting Mills v. First Fed. Savs. &
Loan Ass’n of Belvidere, 83 F.3d 833, 845 (7th Cir. 1996)) (emphasis in Mills)). As explained
earlier, “a factfinder can ‘infer the ultimate fact of discrimination from the falsity of the
employer’s explanation.’” Graber, 2011 WL 759746, at *19 (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)).
In an effort to establish pretext, Humes first attempts to refute the “reason for separation”
recorded on Humes’s Employee Termination Report—that EMF had experienced a “down turn
in business”. (Sanders Aff. Ex. A.) In doing so, Humes nitpicks EMF’s income statements,
21
selectively setting forth certain variables (such as gross sales and payroll costs) and calculating
their percentile changes from 2007 to 2009. (Mem. in Supp. of Pl.’s Opp’n 2-4.) She also
produces the Affidavits of several former employees who, in essence, claim that while business
was slow at the time, it did not appear to be a major decrease. (See Hicks Aff. ¶¶ 9, 10; Smith
Aff. ¶¶ 5, 7, 8; Wells Aff. ¶¶ 3, 5, 6, 8.)
Humes’s effort to specifically refute EMF’s view that it had experienced a “down turn in
business” is unpersuasive. The record undisputably reveals that in 2007, EMF lost $1,000,000 in
business and was forced to close one of its plants in Mississippi. (Sanders Aff. ¶ 6.) In June
2008, Sanders advised Poe that EMF may have to go to a four-day work week because it could
not make payroll. (Sanders Supp. Aff. ¶ 9, Ex. A.) Similarly, in September 2008, Sanders told
Poe that he needed to terminate his temporary help and go to a four-day work week. (Sanders
Supp. Aff. ¶ 10.) EMF’s decision to reduce its workforce “appears to be no more than a
legitimate business judgment which this [C]ourt will not second guess.” Konowitz v. Schnadig
Corp., 965 F.2d 230, 233 (7th Cir. 1992); see Harrell v. Potter & Brumfield, Div. of AMF, Inc.,
Civ. A. No. EV 82-299-C, 1986 WL 459, at *4 (S.D. Ind. Aug. 29, 1986) (“Unless the reduction
in force can be proven an outright sham or to have a strongly disparate effect on employees age
40-70, it is presumed to be a valid and proper exercise of business discretion.”). On this record,
Humes offers no evidence that would allow a reasonable juror to conclude that EMF’s assertion
that it had experienced a “down turn in business” in October 2008 was mere pretext.
Next, Humes argues that a rational juror could reasonably infer that EMF’s proffered
reason for retaining Kipfer, rather than her, in the mini RIF—a purported superior skill set,
previous experience as a Plant Clerk, and experience overseeing Plant Clerks in the ISO-9000
22
Coordinator role—is a pretext for discrimination. Humes’s assertions, however, are ultimately
unconvincing, as on this record no reasonable juror could infer that EMF’s decision to retain
Kipfer over Humes was a pretext for age discrimination.
To explain, while Humes attempts to refute Kipfer’s claimed experience in several areas
such as estimating, CAD coordination, and as a Plant Clerk, there is no dispute on this record
that Kipfer had skills in the ISO-9000 Program that Humes did not. That is, Humes, who had
never conducted any ISO-9000 training, concedes that Kipfer was the “head” of the ISO-9000
Program. (Humes Dep. 37, 42, 51.) The record reveals that the ISO-9000 Program was
important to EMF, and that since 1999 EMF had invested significant time and money in Kipfer
to oversee the certification process, including on-the-job training and attending courses at local
universities. (Sanders Supp. Aff. ¶¶ 4, 5.)
Similarly, there is no dispute on this record that Kipfer had worked in purchasing for
several years, experience that Humes lacked. (Humes Dep. 40-41.) Thus, even if it could be said
that EMF inflated Kipfer’s purported experience in estimating, CAD coordination, and as a Plant
Clerk, it clearly has established that Kipfer was proficient in certain critical skill areas that were
altogether missing from Humes’s resume. See Radentz, 2011 WL 1237931, at *3 (stating that an
employer’s justification for termination may be considered pretextual where the plaintiff
demonstrates that it had “no basis in fact”); Brown, 499 F.3d at 683 (“With indirect evidence, the
plaintiff must show that the employer’s reason . . . is factually baseless.”).
Nor has Humes produced evidence upon which a reasonable juror could infer that
Kipfer’s skill set, which included the ISO-9000 coordination and purchasing experience, “did not
actually motivate” or “was insufficient to motivate” the decision to retain her over Humes, or
23
that EMF’s cited reasons were “dishonest”. See Radentz, 2011 WL 1237931, at *3. In that vein,
Humes attempts to make much of the fact that in contrast to EMF’s claim that Kipfer was a Plant
Clerk in 1997, a contemporaneous personnel document refers to her as an “Office Clerk”, and
several former employees recall that another employee, Betty Locke, actually served as Plant
Clerk. Humes also disputes EMF’s claim that Kipfer oversaw Plant Clerks in her role as ISO9000 Coordinator, asserting that at no time during her employment did Kipfer ever “oversee” or
“supervise” her. (Humes Aff. ¶ 7.) Humes also points to Kipfer’s long-standing absenteeism
problem in an effort to discredit Sanders’s and Poe’s decision to retain Kipfer over her.
Humes’s attempt to specifically refute EMF’s reasons for retaining Kipfer rather than
her, however, is not particularly compelling. See Graber, 2011 WL 759746, at *19 (“To show
that the employer’s reason is unworthy of credence, a plaintiff ‘must specifically refute the facts
which allegedly support the employer’s proffered reasons.’” (quoting Mills, 83 F.3d at 845)
(emphasis in Mills)). First, Humes suggested in her own deposition that certain job titles at EMF
were fairly interchangeable and “kind of meaningless” (Humes Dep. 87), thus negating the
significance of the skirmish over Kipfer’s 1997 job title. And, although Humes claims on the
one hand that Kipfer never supervised or oversaw her work, she at the same time concedes that
Kipfer was the “head” of the ISO-9000 Program and in that context, told her “what things had to
be done . . . [and] didn’t have to be done” (Humes Aff. ¶ 7; Humes Dep. 37), suggesting that
Kipfer provided at least some direct supervision during their employment at EMF.
Moreover, EMF emphasizes that its decision to retain Kipfer over Humes was based
upon their respective skill sets, not their disciplinary records or attendance history. Indeed, the
Seventh Circuit Court of Appeals has instructed that “to squarely rebut the articulated reason for
24
[her] discharge,” Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 349 (7th Cir. 1997), the plaintiff
“must focus on the specific reasons advanced by the defendant to support the discharge.” Smith
v. Gen. Scanning, Inc., 876 F.2d 1315, 1319 (7th Cir. 1989). “For example, an employee
discharged for poor attendance does not prove pretext by arguing that no other employee did the
job better. He only proves pretext by establishing that his attendance was good enough to keep
his job.” Plair, 105 F.3d at 349; see also Riley v. Lutheran Gen. Hosp., No. 97 C 3332, 1999 WL
184163, at *12 (N.D. Ill. Mar. 25, 1999); Campbell v. Fasco Indus., Inc., 861 F. Supp. 1385,
1399-1400 (N.D. Ill. 1994). Moreover, and importantly, Kipfer’s attendance record was a bit of
ancient history by the time of the mini-RIF, as she had not been disciplined or counseled about
her attendance in the two years immediately preceding Humes’s October 2008 termination. See
generally Hong v. Children’s Mem’l Hosp., 993 F.2d 1257, 1262 (7th Cir. 1993) (“The critical
issue is whether she was performing well in her job at the time of [the] termination.”).
In any event, even if Poe and Sanders, the decision makers in the mini-RIF, were
mistaken about whether Kipfer had previous experience as a Plant Clerk or in overseeing Plant
Clerks in her role as ISO-9000 Coordinator, that is insufficient to establish pretext. See, e.g.,
Schaffner v. Glencoe Park Dist., 256 F.3d 616, 622 (7th Cir. 2001) (granting summary judgment
in age discrimination case where plaintiff failed to present any evidence to contradict the
defendant’s “honest, albeit possibly mistaken belief” for not promoting her); Jordan v. Summers,
205 F.3d 337, 343 (7th Cir. 2000) (“Even if the reasons for [plaintiff’s termination] were
mistaken, ill considered or foolish, so long as [defendant] honestly believed those reasons,
pretext has not been shown.”); Courtney v. Biosound, Inc., 42 F.3d 414, 425 (7th Cir. 1994)
(acknowledging that plaintiff’s evidence could raise an inference that defendant was mistaken in
25
its assessment of her skills, in comparison to another candidate, “[b]ut that is not enough”).
Rather, Humes “must present evidence to suggest not that [EMF] was mistaken in
[terminating] her but that it was lying in order to cover up the true reason” for the decision—her
age. Jordan, 205 F.3d at 343; see Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 557 (7th Cir.
2001) (“[W]e deal with small gradations, with an employer’s subjective comparison of one
employee to another, and it is incumbent upon us to remember that what is at issue is not the
wisdom of an employer’s decision, but the genuineness of the employer’s motives.”); Clay v.
Holy Cross Hosp., 253 F.3d 1000, 1005 (7th Cir. 2001) (“A ‘pretext for discrimination’ means
more than an unusual act; it means something worse than a business error; ‘pretext’ means deceit
used to cover one’s tracks.” (citation omitted)). Humes, however, has failed to point to evidence
upon which a reasonable juror could infer that EMF was lying about its reasons for terminating
her.
Although Humes suggests in her deposition that she believes several other former
employees were also terminated because of their age (Wells, Smith, Locke, and Hickman)
(Humes Dep. 117-18), she does not develop this line of argument in response to EMF’s summary
judgment motion or attempt to refute EMF’s statistics indicating that the majority of the
downsized employees were under forty years old, and conversely, that the majority of retained
employees were over forty years old. See generally Smith v. Ne. Ill. Univ., 388 F.3d 559, 569
(7th Cir. 2004) (explaining that undeveloped arguments are waived); Laborer’s Int’l Union of N.
Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999) (emphasizing that arguments not presented
in response to summary judgment motions are deemed waived). “Plaintiffs must do more than
merely point to [age] and proclaim: ‘Aha! Discrimination.’” Hague v. Thompson Distrib. Co.,
26
436 F.3d 816, 829 (7th Cir. 2006). And of course, this Court has already concluded that Wells
and Smith were unable to establish a prima facie case of age discrimination in response to
EMF’s first motion for summary judgment.
Instead, Humes contends that a reasonable jury could infer pretext for age discrimination
because EMF terminated her after she and her husband filed more than fifty claims for health
insurance benefits in 2008 on EMF’s purportedly self-insured plan. (Mem. in Supp. of Pl.’s
Opp’n 8; Humes Dep. 47-48.) Humes’s argument is a non-starter for several reasons, the most
obvious being that EMF has produced evidence indicating that it “is not a self-insured
company”, and “does not receive any reports that identify which employees use the Cigna
insurance or the associated per-employee cost of the medical insurance.” (Sanders Second
Supplemental Aff. ¶¶ 3, 6 (emphasis added).) EMF states that such documents remain with its
insurer, Cigna Insurance Company, and thus EMF “has no knowledge of how often employees
use their medical insurance or how much each employee has charged to his or her medical
insurance”. (Sanders Second Supplemental Aff. ¶ 6.) Thus, there is simply no evidence that
Sanders and Poe were aware of Humes’s claims-filing history when EMF decided to terminate
her.
Not to be deterred, Humes also rather cryptically (or speculatively) suggests that, even if
EMF was unaware of her claims-filing history, Sanders and Poe were able to draw some
correlation between older workers and the increased cost of health care benefits to EMF, and
thus employed “a subtle method of ‘weeding’ out the older, more prolific users of the company’s
insurance plan”. (Mem. in Supp. of Pl.’s Opp’n 11); cf. Hazen Paper, 507 U.S. at 613 (“Pension
status may be a proxy for age, not in the sense that the ADEA makes the two factors equivalent, .
27
. . but in the sense that the employer may suppose a correlation between the two factors and act
accordingly.”). Humes’s argument, however, is nothing more than naked speculation, devoid of
any probative facts. Although the record supports an inference, perhaps, that Poe was concerned
about the cost of health care benefits, Humes has failed to produce any evidence upon which a
reasonable juror could infer that as a proxy for age he discriminated against, or terminated,
employees who used EMF’s health care benefits.12 See Harney v. Speedway SuperAm., LLC, 526
F.3d 1099, 1104 (7th Cir. 2008) (“Summary judgment is the ‘put up or shut up’ moment in a
lawsuit.” (citation omitted)).
In sum, “courts do not sit as super personnel departments, second-guessing an employer’s
facially legitimate business decision.” Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 532 (7th
Cir. 2003). Here, Humes has raised only speculation, but no genuine issue of material fact, about
whether EMF’s explanation for terminating her in the mini-RIF—that it believed Kipfer had the
skills to absorb Humes’s job but that Humes did not have the skills to absorb Kipfer’s job—was
a pretext for age discrimination. Accordingly, EMF is entitled to judgment as a matter of law.
VI. CONCLUSION
For the reasons given herein, Defendant’s motion for summary judgment (Docket # 46) is
12
Generally speaking, “an employer may base an employment decision upon health care costs without
implicating age considerations or violating the ADEA.” Caponigro v. Navistar Int’l Transp. Corp., No. 93 C 0647,
1995 WL 238655, at *8 (N.D. Ill. Apr. 20, 1995) (citing Hazen Paper, 507 U.S. 604). “[L]ike wages, pensions and
managerial considerations, medical costs are often correlated with age but are not necessarily closely correlated with
age.” Id.; Coleman v. Navistar Int’l Transp. Corp., No. 93 647, 1996 WL 426229, at *20 (N.D. Ill. July 26, 1996);
see also E.E.O.C. v. Francis W. Parker Sch., 41 F.3d 1073, 1077 (7th Cir. 1994) (“[Employment] decisions based on
criteria which merely tend to affect workers over the age of forty more adversely than workers under forty are not
prohibited.”); Cupples v. AmSan, LLC d/b/a Maint. Supply Co., No. 3:04-CV-574-W, 2007 WL 1075178, at *7
(W.D.N.C. Mar. 30, 2007) (“[D]iscrimination on the basis of the cost of employing an older worker alone does not
establish a violation of the ADEA.” (emphasis in original)). “[The ADEA] requires the employer to ignore an
employee’s age (absent a statutory exemption or defense); it does not specify further characteristics that an employer
must also ignore.” Hazen Paper, 507 U.S. at 612 (emphasis in original).
28
GRANTED, and its motion to strike (Docket # 55) is GRANTED IN PART and DENIED IN
PART. The Clerk is DIRECTED to enter final judgment in favor of Defendant and against
Plaintiffs Rick Wells, Judy Humes, and Vern Smith.
SO ORDERED.
Enter for this 3rd day of June, 2011.
/S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
29
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