Morgan v. Ball Metal Beverage Container Corporation

Filing 29

OPINION AND ORDER GRANTING 20 MOTION for Summary Judgment by Defendant Ball Metal Beverage Container Corporation. Signed by Judge William C Lee on 4/6/17. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JERRY MORGAN,
Plaintiff,
v.
BALL METAL BEVERAGE
CONTAINER CORP. d/b/a
BALL CORPORATION,
Defendant.

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CIVIL NO. 4:15cv69

OPINION AND ORDER
This matter is before the court on a motion for summary judgment filed by the defendant,
Ball Metal Beverage Container Corp. (“Ball”), on November 16, 2016. The plaintiff, Jerry
Morgan (“Morgan”), filed his response on January 9, 2017, to which Ball responded on February
2, 2017.
For the following reasons, the motion for summary judgment will be granted.
Summary Judgment
Summary judgment must be granted when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine
issue of material fact exists when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Not every dispute between the parties precludes summary judgment, however, since “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law” warrant a
trial. Id. To determine whether a genuine issue of material fact exists, the court must construe all
facts in the light most favorable to the non-moving party and draw all reasonable inferences in

that party’s favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). A party opposing a properly
supported summary judgment motion may not rely merely on allegations or denials in its own
pleading, but rather must “marshal and present the court with the evidence she contends will
prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
Discussion
Morgan has sued his employer, Ball, alleging violations of the Americans with
Disabilities Act (“ADA”), the Family Medical Leave Act (“FMLA”), and the Age Discriminaiton
in Employment Act (“ADEA”). Morgan alleges discrimination and retaliation.
Ball manufactures aluminum beverage cans and bottles at its Monticello, Indiana plant.
(Declaration of Paula Thoennes (“Thoennes Decl.”) ¶4). Morgan, who was born in 1954,
worked for Ball and its predecessor companies from September 1991 until his resignation in
October 2002. (Thoennes Decl. ¶9; Morgan Dep. 11:8-9). On or around May 5, 2007, Ball
rehired Morgan as a Maintenance Supervisor at the Monticello plant. (Thoennes Decl. ¶9;
Morgan Dep. 41:20-22, 96:2-16); Dkt. 1, ¶14). As a Maintenance Supervisor, Morgan supervised
approximately fourteen employees and managed the maintenance function at the Monticello
plant. (Thoennes Decl. ¶7). From May 5, 2007 until his termination on November 25, 2014,
Morgan reported to Freddy Spencer, Engineering Manager, who was born in1956. (Morgan Dep.
41:25-42:2, 68:3-15; Declaration of Freddy Spencer (“Spencer Decl.”) ¶¶2, 4, 5; Dkt. 1, ¶¶ 14,
28). Morgan received Ball’s Hourly Employee Handbook by at least January 4, 2011. (Morgan
Dep. 131:23-132:12, Ex. 8).
In or around April 2010, Chris Czajkowski, who was born in 1968, became the
Monticello Plant Manager. (Declaration of Chris Czajkowski (“Czajkowski Decl.”) ¶¶2-3).
2

Czajkowski implemented heightened standards for employee performance across all levels.
(Czajkowski Decl. ¶4). Ball communicated to all employees that they would be held to higher
performance expectations moving forward. (Id.). Morgan believed Czajkowski “came in . . .
getting rid of everybody.” (Morgan Dep. 61:21-25).
Morgan received several performance-related disciplinary warnings between 2010 and
2014. (Morgan Dep. 42:18-24). On July 2, 2010, Morgan received a performance memorandum
addressing his poor leadership skills and work performance. (Morgan Dep. 138:5-19,2 Ex. 13;
Thoennes Decl. ¶10, Ex. 13). The warning cautioned Morgan to immediately improve his
performance in the following areas:
1.

You must gain control of your associates and show your leadership skills to gain
the confidence from your department. You must demonstrate to your associates
that you are trustworthy and honest.

2.

You must have follow-up and follow-through techniques making sure jobs are
thoroughly and accurately completed.

3.

You must be self-motivated. Your motivation reflects on your associates.

4.

You must be focused on paying attention to details. Failing to pay attention to
details leads to unnecessary downtime, missed deadlines, delays, etc.

5.

You must plan & pre-plan for work. You must get out on the floor and assess
jobs, work with the production group to minimize downtime, and take advantage
to correct multiple issues when downtime is available.

6.

You must be professional in all you do and with all levels in our organization. i.e.
Provide answers instead of excuses, no sarcastic remarks, etc. . .

(Morgan Dep., Ex. 13). The memorandum noted “We explained a few months ago that we were
‘raising the bar’ for the entire engineering department.” (Morgan Dep., Ex. 13).
Despite his July 2, 2010, warning, on September 16, 2010, Morgan received another

3

disciplinary warning for a serious safety violation. (Morgan Dep. 134:22-135:7, 137:23-138:4,
Ex. 12). The warning provided that Morgan had failed to follow crucial safety procedures.
(Morgan Dep., Ex. 12). Morgan received a five day suspension, without pay, for the violation.
(Id.)
On October 15, 2010, Morgan and Ball executed a Last Chance Agreement (“LCA”).
(Morgan Dep. 43:21-44:13, Ex. 4). The LCA provided
Jerry, please be advised that your performance as it relates to Employee Relations
is unacceptable. You have failed to keep our work environment free from
workplace harassment. You have received training regarding your responsibilities
as it pertains to preventing and stopping harassment. . . Regardless, you did not
fulfill your responsibilities as a member of management. . . .
As you are aware, you are an at-will employee and may be terminated by the
Company at any time, with or without cause. By signing this agreement, you
understand that the Company’s willingness to continue your employment is
dependent upon you fulfilling your EEO managerial responsibilities.
(Morgan Dep., Ex. 4). Morgan and Czajkowski signed the LCA on October 15, 2010. (Morgan
Dep., Ex. 4). Morgan does not believe the LCA had anything to do with his age or medical
condition. (Morgan Dep. 45:14-46:18).
In December 2010, Morgan received an overall “needs improvement” rating on his 2010
performance review. (Spencer Decl. ¶¶8-9, Ex. A). He also received “needs improvement”
ratings in the individual areas of integrity and trust, building effective teams, and managing and
measuring work. (Spencer Decl., Ex. A). Spencer specifically noted Morgan’s subordinates did
not trust him. Id. Spencer also counseled Morgan that he needed to work on building an effective
team by better managing his team members. Id. With regard to organization, Spencer noted
“[Morgan] is sloppy in his work area and being disorganized hampers his efforts to manage his

4

work effectively.” Id. Spencer concluded “[Morgan] must improve in the informing segment as
well as managing his work. I would suggest he practice more organizational skills to improve in
these areas.” Id.
In 2011, 2012, and 2013, Morgan’s overall performance improved slightly, but Spencer
continued to counsel Morgan regarding his weaknesses. (Spencer Decl. ¶10, Exs. B, C, D). In his
2011 annual review, Morgan received an overall “meets expectation” rating, but Spencer noted
Morgan needed improvement in the area of “Managing and Measuring Work.” (Spencer Decl.
¶10, Ex. B). Spencer reiterated his concerns from the year before and suggested Morgan do a
better job at follow through. (Spencer Decl., Ex. B). Spencer also ranked Morgan at a “needs
improvement” in the area of “Building Effective Teams,” noting “Jerry must improve in this
area. Being a strong leader promotes growth and positive results. Taking time to listen to team
members is crucial in building a good relationship. Giving very clear direction would also
enhance this effort. I believe more effort needs to be aimed toward these objectives.” Id.
In 2012, Morgan’s attendance declined significantly. (Thoennes Decl. ¶11). In September
2012, Spencer and Human Resources Manager Paula Thoennes, who was born in 1967, met with
Morgan to discuss his attendance. (Thoennes Decl. ¶11; Spencer Decl. ¶11). During their
conversation, Morgan disclosed that several of the absences were for transitory illness like the
flu. (Id.) Morgan also confided in Thoennes and Spencer that he had diabetes and was
occasionally absent from work because of complications with the condition. (Id.; Dkt. 1, ¶17).
Thoennes informed Morgan of his potential eligibility for FMLA leave related to his diabetes.
(Thoennes Decl. ¶11). Morgan applied for and received intermittent FMLA leave in 2012, 2013,
and 2014. (Morgan Dep. 132:13-134:2, 141:15-142:18, Exs. 9-10; Thoennes Decl. ¶12). Ball did
5

not interfere with Morgan’s FMLA leave. (Morgan Dep. 53:13-20, 104:7-15).
In his 2012 performance evaluation, Morgan received an overall “meets expectations”
rating, but Spencer noted Morgan still struggled in the same areas where he struggled the year
before. (Spencer Decl. ¶12, Ex. C). Spencer ranked Morgan as “Needs Improvement” in the areas
of “Informing” and “Managing and Measuring Work,” noting:
•

Informing: “Jerry has slipped in this area. He must focus on keeping me abreast of
all plant operational issues and keep me informed of progress and projects.”

•

Managing and Measuring Work: “Jerry must improve in this area. He must be
more personable in his job assignments to his direct reports so that have [sic] a
clear understanding of the job at hand. He is very disorganized which hampers his
efforts to manage his work effectively. Follow through and follow up are areas
Jerry must improve.”

(Spencer Decl., Ex. C). Spencer again concluded Morgan’s review by noting “I would stress that
more organizational skills would enhance his performance status.” Id. In the employee comments
section, Morgan agreed with Spencer’s comments on organization, noting “This years [sic] goal
is to get more organized.” Id.
Despite this counseling, Morgan’s 2013 review contained comments similar to those from
his previous evaluations. (Spencer Decl. ¶13, Ex. D). Spencer rated Morgan’s overall
performance as effective, but noted Morgan needed to improve in the areas of operational
excellence, sustainability, and creativity/innovation management. (Spencer Decl., Ex. D). On
these points, Spencer noted:
•

Operational Excellence: “[Morgan] has not met the goal of reducing the process
spoilage areas. He must be more vigilant in finding ways to achieve this goal by
actively being involved in identifying certain areas and developing a plan to
improve.”

•

Sustainability: “Jerry has not submitted any cost cutting proposals this year. Cost
6

reduction is an expectation. Jerry must be more vigilant [in] finding ways to
reduce cost.”
•

Creativity/Innovation Management: “Jerry must be proactive in finding ways to
improve our processes by ideas, suggestions and actively finding support to
improve/enhance our plant operations. Jerry has a very talented team that he must
realize is a vital source and must tap into their knowledge.”

Id. Spencer concluded, again counseling Morgan: “Jerry possesses very good leadership
characteristics but must apply these skills to better the department. Jerry has improved in the
informing segment but must improve in managing his work. I would stress that more
organizational and follow-up skills would enhance his performance status.” Id.
In approximately April 2014, Morgan requested and received a continuous medical leave
for a medical condition related to his diabetes. (Morgan Dep. 54:7-10, 100:8-11; Thoennes Decl.
¶13; Dkt. 1, ¶¶ 19-22). He returned to work on April 28, 2014. (Morgan Dep. 55:19-23; Dkt. 1, ¶
25). When Morgan returned from leave he asked to wear a walking boot with an open toe for six
to seven weeks. (Morgan Dep. 54:11-15, Dkt. 1, ¶ 25; Thoennes Decl. ¶¶14). The Monticello
plant’s production floor requires that employees wear protective equipment and closed-toed
shoes. (Thoennes Decl. ¶15). Therefore, while wearing the boot, Morgan had to work from the
maintenance office and could not go on the production floor. (Morgan Dep. 54:16-21, Dkt. 1, ¶
25). Despite this, Ball granted Morgan’s request to wear the boot and work out of the office.
(Morgan Dep. 54:11-15, 54:25-55:3).
Morgan alleges that while he was working out of the maintenance office and wearing the
boot, Spencer called him “flipper”, “gimpy” and “big foot”. (Morgan Dep. 55:4-10, 55:24-56:11;
Dkt. 1, ¶ 26). Morgan never complained to any member of management or Human Resources
that he thought he was being discriminated against because of any disability. (Morgan Dep.
7

59:11-17).
In 2014, Spencer became increasingly frustrated with Morgan because he was not
completing all his tasks. (Morgan Dep. 56:16-58:7, 103:21-104:6). Spencer had received
multiple complaints from Morgan’s co-workers that Morgan failed to follow through on requests.
(Spencer Decl. ¶14). For example, employees complained they had to ask Morgan repeatedly to
order a part or complete a task, often without success. (Id.) Morgan also often requested overtime
hours, but still failed to complete all necessary tasks. (Id. ¶15). Employees reported to Spencer
that they suspected Morgan was sleeping in his office early in the morning while he was on the
clock. (Id.)
Morgan began vacation on or around May 19, 2014. (Morgan Dep. 85:14-20; Thoennes
Decl. ¶16). During Morgan’s vacation, Spencer filled in for Morgan. (Spencer Decl. ¶19). While
acting as Maintenance Supervisor, Spencer discovered the maintenance room was in disarray and
that many of Morgan’s responsibilities were not being accomplished. (Spencer Decl. ¶¶19, 20).
The tool room was disorganized and many of the Maintenance Department’s projects were
behind schedule. (Spencer Decl. ¶19). Morgan’s subordinates also reported frustration with
Morgan because he had not ordered parts necessary for them to complete their tasks. (Spencer
Decl. ¶¶16, 20). Morgan had also failed to leave a list of projects his subordinates could complete
during his vacation. (Spencer Decl. ¶20). All of the deficiencies Spencer noted could have been
easily accomplished while Morgan worked out of the Maintenance Office. (Spencer Decl. ¶16).
On May 23, 2014, the Monticello plant experienced a fire which severely damaged the
facility. (Thoennes Decl. ¶16; Morgan Dep. 85:14-20). Management employees worked long
hours to get the plant running. (Morgan Dep. 85:20-25; Spencer Decl. ¶21). Morgan returned
8

from his vacation on Monday, May 26, 2014. (Morgan Dep. 87:16-18; Thoennes Decl. ¶16).
Spencer observed that Morgan took little initiative during the recovery process. (Spencer Decl.
¶21). After Morgan returned from his vacation in May 2014, many of his subordinates continued
to go directly to Spencer when they needed guidance or support because they did not feel
comfortable going directly to Morgan. (Spencer Decl. ¶22).
On June 27, 2014, Thoennes and Spencer met with Morgan to deliver a written warning
regarding his on-going unsatisfactory work performance. (Morgan Dep. 60:10-17; 63:15-64:8;
65:6-67:4, Ex. 5; Dkt. 1, ¶27; Thoennes Decl. ¶18; Spencer Decl. ¶¶ 23-24). During the meeting,
Thoennes and Spencer delivered a memorandum listing eight areas where Morgan did not meet
expectations. (Morgan Dep. 60:10-22, Ex. 5; Dkt. 1, ¶27). The warning outlined deficiencies in
Morgan’s safety procedures, management skills, attention to quality, follow through, cost saving
efforts, communication, organization, staff motivation, and time management. (Morgan Dep., Ex.
5). The memorandum concluded:
Our business climate does not allow us to continue to provide employment
opportunities to those who fail to meet and sustain the level of performance to our
expectations. After reviewing your performance with our corporate HR
Department, we are issuing this performance appraisal to extend you the
opportunity to step up and meet the job requirements on a consistent and sustained
basis. Until further notified, you must take the initiative to meet with me on a
weekly basis to review your performance. Failure to meet the expectations and
sustain them may result in your immediate termination of employment. We expect
to see immediate improvement in the areas that are easier to resolve and a plan in
place for the topics that will take more time and effort. . . .
By signing this agreement you understand that the Company’s willingness to
continue your employment is conditional upon you improving your performance.
You fully understand, acknowledge and agree that, should you fail to improve
your performance, and sustain satisfactory performance, Ball . . . may terminate
your employment at the discretion of the Company.

9

(Id.) Morgan and Spencer signed the agreement on June 27, 2014. (Id.) At no point during his
June 27, 2014 meeting or any time thereafter did Morgan complain he was being discriminated
against. (Morgan Dep. 67:5-16, 80:22-81:19).
Morgan responded to the June 27 memorandum with a written plan for how he would
improve his performance. (Morgan Dep. 139:17-140:20, Ex. 15; Thoennes Decl. ¶19). Spencer
met with Morgan weekly to discuss his performance compared to the goals set forth in the June
27 memorandum. (Spencer Decl. ¶25).3 Morgan’s performance did not improve. (Thoennes
Decl. ¶19; Spencer Decl. ¶26). Notably, Morgan’s subordinates continued to come to Spencer
directly for assistance. (Spencer Decl. ¶22, 27, 29, Ex. 14). Morgan failed to complete tasks as
assigned and then blamed his failings on others. (Spencer Decl. ¶27, Ex. 14). He also continued
to be disorganized without a proactive plan for how to improve his performance or the operation
of the Maintenance Department. (Id.) Although Morgan disagreed with Spencer’s assessment of
his performance, Morgan understood Spencer was not pleased with his job performance.
(Morgan Dep. 79:13-79:17).
On November 10, 2014, Morgan began a vacation. (Thoennes Decl. ¶20). While he was
on vacation, Spencer again directly managed the Maintenance Department. (Spencer Decl. ¶28).
Spencer observed additional significant deficiencies with Morgan’s performance. (Id.) Spencer
learned Morgan had not taken crucial steps to obtain a part necessary to maintain operations in
the plant (the “OV guard”). (Id., Ex. 14). Spencer also observed that Morgan had not completed
necessary safety verification forms required by OSHA. (Id., Ex. 14). Spencer summarized
Morgan’s performance deficiencies since his June 27 performance improvement plan in a
memorandum and discussed the deficiencies with Morgan. (Spencer Decl. ¶29, Ex. 14; Morgan
10

Dep. 138:20-139:15).
Spencer reported Morgan’s ongoing deficiencies to Thoennes, who recommended
Morgan’s termination. Spencer agreed with Thoennes’s recommendation. (Thoennes Decl. ¶21).
Thoennes then met with Czajkowski to discuss Morgan’s on-going performance deficiencies and
recommend Morgan’s termination. (Thoennes Decl. ¶21; Czajkowski Decl. ¶8). Czajkowski
agreed with Thoennes’s recommendation. (Thoennes Decl. ¶21; Czajkowski Decl. ¶10).
Thoennes then consulted Ball’s Human Resources Focal Point, Terry McGinley, to begin the
process of terminating Morgan’s employment. (Id.).
On November 20, 2014, Czajkowski, Thoennes, and Spencer met with Morgan and
discussed his performance. (Morgan Dep. 68:13-69:19; Czajkowski Decl. ¶8). At the meeting,
Czajkowski placed Morgan on paid administrative leave while Ball considered whether to
terminate his employment. (Morgan Dep. 68:13-69:19; Thoennes Decl. ¶22; Czajkowski Decl.
¶8). Morgan did not report any alleged discrimination or retaliation. (Morgan Dep. 69:25-70:14;
Czajkowski Decl. ¶9, Spencer Decl. ¶34).
Following the meeting, McGinley communicated support and approval for the
termination decision. (Thoennes Decl. ¶23). On November 25, 2014, Thoennes and Spencer met
with Morgan to terminate his employment. (Morgan Dep. 68:3-15; Dkt. 1, ¶28; Spencer Decl.
¶32). Consistent with past practice at the Monticello plant, a police officer then escorted Morgan
to his car. (Morgan Dep. 72:16-73:24, 74:3-9, 147:15-148:6).
In the year following Morgan’s termination, Plant Production Manager Rick Nydegger,
who was born in 1954, Machinist Steve Oteham, who was born in 1966, and Spencer shared the
responsibilities previously performed by Morgan. (Morgan Dep. 124:4-21; Spencer Decl. ¶33;
11

Declaration of Rick Nydegger (“Nydegger Decl.”) ¶¶2-7).
In support of his Complaint against Ball, Morgan claims that Spencer began making agerelated comments in late 2014, shortly before Morgan’s sixtieth birthday. (Morgan Dep. 47:1448:5). Morgan claims that Spencer, less than two years his junior, called Morgan “old gummer”
and “old man” and asked if he was tired at the end of the day. (Morgan Dep. 38:12-39:23, 48:2349:7; Spencer Decl. Spencer Decl. ¶4).4 On this point, Morgan testified:
Q.

What leads you to believe that your 60th birthday had anything to do with your
termination?

A.

I don't, particularly. I think me having diabetes and them wanting to get rid of me
all was leading up to, you're not doing your job, you're an old man, this-and-that
type of thing.

Q.

Well, let me try to keep these separate. I want to understand any facts that you
have that lead you to conclude you were terminated because of your age, and so
far you've told me there were some comments by Freddie Spencer.

A.

That's the only reason.

Q.

Anything else?

A.

No. Other than that, I felt like I was 60, and that was part of it.

(Morgan Dep. 39:18 to 40:13). Morgan never complained regarding these comments to any
member of Ball management or Human Resources. (Morgan Dep. 52:1-15). Morgan does not
have any other evidence that his age motivated his termination or any other putative adverse
action. (Morgan 50:14-17, 53:5-8).
In support of its motion for summary judgment, Ball claims that Morgan simply has no
evidence to support his discrimination and retaliation claims. Ball argues that it terminated
Morgan’s employment for on-going performance deficiencies and not because of his disability,

12

medical leave, or requested accommodation. To survive Ball’s motion for summary judgment on
his disability discrimination claim, Morgan must “demonstrate a genuine issue of material fact as
to: (1) whether he was disabled, (2) whether he was qualified to perform the essential functions
of his job and (3) whether he was terminated because of his disability.” Quick v. City of Fort
Wayne, No. 1:15-CV-056 JD, 2016 U.S. Dist. LEXIS 131868, *7 (N.D. Ind. Sept. 27, 2016)
(citing Povey v. City of Jeffersonville, Ind., 697 F.3d 619, 622 (7th Cir. 2012)). Similarly, to
prove his FMLA and ADA retaliation claims, Morgan must prove (1) he engaged in a protected
activity; (2) Ball took an adverse employment action against him; and (3) there is a causal
connection between the protected activity and the adverse employment action. Soriano v. City of
East Chicago, No. 2:13-CV-439 JD, 2016 U.S. Dist. LEXIS 41839, *19 (N.D. Ind. Mar. 30,
2016) (citing Pagel v. TIN Inc., 695 F.3d 622, 631 (7th Cir. 2012) (FMLA retaliation); Davis v.
Munster Med. Research Found., Inc., No. 2:14-CV-220, 2016 U.S. Dist. LEXIS 135159, *49-50
(N.D. Ind. Sept. 30, 2016) (ADA retaliation). For the purposes of summary judgment, Ball
assumes Morgan is disabled and engaged in protected activity under the FMLA and ADA.
Morgan conflates his FMLA and ADA clams, arguing Ball terminated his employment
because he has diabetes, took FMLA leave, and requested an accommodation. (Morgan Dep.
104:7-105:7). The Seventh Circuit recently explained that the proper inquiry for discrimination
and retaliation claims is “whether the evidence would permit a reasonable factfinder to conclude
that the plaintiff's [protected status or activity] . . . caused the discharge or other adverse
employment action. Evidence must be considered as a whole, rather than asking whether any
particular piece of evidence proves the case by itself—or whether just the 'direct' evidence does
so, or the 'indirect' evidence.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 2016 U.S. App. LEXIS
13

15284, *10 (7th Cir. 2016); see also Davis, 2016 U.S. Dist. LEXIS 135159, *35-36.
The record is clear that Ball terminated Morgan for performance deficiencies. Morgan’s
deficiencies ranged from a disorganized tool room to serious failures to complete productioncrucial tasks. (Spencer Decl. ¶¶9-10, 12-15, 19-22, Exs. A-D, 14, Morgan Dep. 43:21-44:13,
56:16-58:7, 60:10-17; 63:15-64:8; 65:6-67:4, Ex. 5, 103:21-104:6, 134:22-135:7, 137:23-139:15,
Exs. 4, 5, 13, 14; Thoennes Decl. ¶¶10, 17, 18, 20, Exs. 13, 5). Even though Morgan implies that
he was not counseled for poor performance until after his April 2014 leave, the record
undisputedly shows that Ball began counseling Morgan regarding his poor performance in 2010,
when Czajkowski instituted higher expectations for all employees, and well before Morgan ever
took medical leave. (Czajkowski Decl. ¶4; Thoennes Decl. ¶10, Ex. 13; Morgan Dep. 43:2144:13, 61:21-25, 134:22-135:7, 137:23-19, Exs. 4, 12, 13). As noted above, in the last several
years of his employment, Morgan received two written warnings, a last chance agreement,
multiple “improvement needed” ratings, and a performance improvement plan. (Morgan Dep.,
Exs. 4, 5, 12, 13, 14; Spencer Decl., Exs. A-D) Despite this, Morgan did not adjust his
performance to respond to management concerns. (Spencer Decl. ¶9-10, 12-15, 19-22, 24-27, Ex.
14). In November 2014, Morgan took a vacation and Spencer learned just how little Morgan had
done to improve upon the serious performance deficiencies Ball identified in Morgan’s June
2014 performance improvement plan. (Spencer Decl. ¶¶28-29, Ex. 14; Morgan Dep. 138:20139:15).
Additionally, Ball demonstrated good faith with regard to Morgan’s medical condition
and related leaves. In 2012, when Morgan began missing too much work, it was Ball who
suggested he may be eligible for leave. (Thoennes Decl. ¶11; Spencer Decl. ¶11). Ball never did
14

anything to prevent Morgan from taking intermittent or continuous FMLA leave; indeed it
facilitated his ability to take the leave. (Morgan Dep. 53:13-20, 104:7-15). Ball never moved or
reassigned Morgan following any of his leaves. Likewise, Ball allowed Morgan the only
accommodation he ever requested – working in his office and wearing a boot. (Morgan Dep.
54:11-15, 54:25-55:3). Ball’s only action regarding Morgan’s disability, leave, or
accommodation was to work with him in good faith.
The only evidence Morgan offers in support of his ADA and FMLA claims are Spencer’s
alleged comments in April and May 2014 calling Morgan “flipper”, “gimpy” and “big foot”
when he wore the walking boot. (Morgan Dep. 55:4-10, 55:24-56:11; Dkt. 1, ¶ 26). However, the
law is clear that isolated comments more than six months before Morgan’s termination, unrelated
to the termination decision, have no bearing on the reason for his discharge. See Hooper v.
Proctor Health Care Inc., 804 F.3d 846, 854-55 (7th Cir. 2015) (citing Markel v. Bd. of Regents
of Univ. of Wis. Sys., 276 F.3d 906, 910 (7th Cir. 2002) (comments made two months before
termination decision were not contemporaneous to adverse action)); Fleishman v. Cont'l Cas.
Co., 698 F.3d 598, 605 (7th Cir. 2012) (“[I]solated comments are not probative of discrimination
unless they are ‘contemporaneous with the discharge or causally related to the discharge
decision-making process.’”) (citations omitted). Even if the comments occurred, they were made
during a brief period of time when Morgan wore a walking boot in April and May 2014. Morgan
does not allege Spencer made the comments in conjunction with Morgan’s termination or
performance deficiencies. Also, Ball did not terminate Morgan until November 25, 2014, more
than six months after he returned from leave and well after the alleged comments would have
stopped. (Morgan Dep. 68:3-15; Dkt. 1, ¶28). Ball coached Morgan to improve his performance
15

for years before his termination and before he ever wore the boot. Spencer’s alleged off handed
comments months before the adverse action do not undermine Ball’s explanation of the reasons
for Morgan’s termination.
Finally, Morgan has not identified any similarly situated employee who was treated more
favorably than he was treated. Morgan can point to no employee with performance as poor as his
who was retained. Morgan has nothing more than a “gut feeling” and speculation that his
disability and FMLA leave prompted Ball to terminate his employment. This alone cannot carry
his claim to trial. Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) (“‘It is well-settled
that speculation may not be used to manufacture a genuine issue of fact.’”) (citing Amadio v.
Ford Motor Co., 238 F.3d 919, 927 (7th Cir. 2001); Borcky v. Maytag Corp., 248 F.3d 691, 695
(7th Cir. 2001) ("The mere existence of some alleged factual dispute will not defeat an otherwise
properly supported motion for summary judgment. . . . Speculation will not suffice.") (internal
citations and quotation marks omitted)); Herzog v. Graphic Packaging Int'l, Inc., 742 F.3d 802,
806 (7th Cir. 2014) (“[I]nferences that are supported by only speculation or conjecture will not
defeat a summary judgment motion.”) (citation omitted)).
Morgan points to Omar Burton, a former employee, who allegedly received a
performance improvement plan and was ultimately terminated following a medical leave. (Resp.,
p. 8). Morgan claims Burton’s experience shows a pattern or practice of discriminating against
individuals who take medical leaves. However, Burton and Morgan are not similarly situated and
Morgan’s characterization of Burton’s employment record – even if accurate – has no probative
value on Morgan’s claims. First, Morgan and Burton did not report to the same supervisor and
Morgan has identified no evidence that any of the same decision makers made any decisions
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regarding the two employees. (Declaration of Omar Burton (“Burton Decl.”) ¶¶2, 3, 5; Morgan
Dep. 41:25-42:2, 68:3-15; Thoennes Decl. ¶¶21, 23; Declaration of Chris Czajkowski
(“Czajkowski Decl.”) ¶10). Second, Burton fails to provide enough information regarding his
medical leave or resulting discipline to equate his experience with Morgan’s. Burton does not
explain how long he was on leave or how long after he returned from leave he received the
performance improvement plan. (Burton Decl. ¶4). If, for example, Burton received the
performance improvement plan four or more months after his return from leave, the timing is not
suspicious at all. See Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir. 2008) (holding
that a seven-week interval between a sexual harassment complaint and plaintiff's termination was
not suspicious); Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 859 (7th Cir. 2008) (holding
that timing was not enough, on its own, to create a jury issue on retaliation where the plaintiff
had threatened to file an EEOC complaint three months and then again six weeks before she was
fired); Parkins v. Civil Constructors of III., Inc., 163 F.3d 1027, 1039 (7th Cir. 1998) (affirming
summary judgment in favor of the employer where the employee complained of sexual
harassment in August and was laid off in November of the same year). Clearly, Morgan has not
done enough to relate Burton’s experience with his own to prove any type of “pattern.”
Likewise, Morgan distorts the record evidence regarding Tracy Holderfield and Scott
LaFond. Morgan claims he was similarly situated to Holderfield and LaFond, but that the two
were outside his protected classes. (Resp., pp. 9-10). In his interrogatories, Morgan sought
information regarding other employees, in Morgan’s chain of command, who were counseled or
disciplined. (Dkt. 25-5, pp. 9-10). Ball answered:
Defendant states that from January 1, 2011 through Plaintiff’s termination, Scott LaFond
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and Tracy Holderfield were employees subject to the same reporting structure as Plaintiff.
Scott LaFond and Tracy Holderfield were both Maintenance Supervisors reporting to
Freddy Spencer in the three years prior to Plaintiff’s termination. Scott LaFond and Tracy
Holderfield both have diabetes. Defendant further states it does not track employee
disability and, therefore, is not aware if Scott LaFond or Tracy Holderfield is disabled or
have a record of disability. Tracy Holderfield recently requested and received leave
pursuant to the FMLA. Defendant further refers Plaintiff to its response to Request for
Production No. 17.
(Dkt. 25-5, p. 10). Ball also produced the personnel files for LaFond and Holderfield, which
contained their performance reviews and any discipline. (Dkts. 25-5, p. 10; 25-7; 25-8). While
neither LaFond nor Holderfield were terminated for poor performance, both received counseling
in their annual performance reviews. (Dkt. 25-7; 25-8). LaFond also received discipline in 2011
for performance deficiencies. (Dkt. 25-8, p. 3).
Morgan, LaFond, and Holderfield held the same or similar titles and all three men
reported to Spencer. (Dkt. 25-5, p. 10; Morgan Dep. 41:20-22, 41:25-42:2, 68:3-15, 96:2-16).
The men were also in the same protected classes. They all suffer from diabetes, and at least
Morgan and Holderfield also requested and received FMLA leave. (Resp., p. 9; Dkt. 25-5, p. 9).
Morgan argues LaFond and Holderfield were “less disabled” than Morgan and/or took less
FMLA leave and, therefore, received more favorable treatment. (Resp. pp. 9-10). Ball, however,
argues that this interpretation of the evidence is simply beyond the scope of any reasonable
inference. For example, Morgan states, without support, that LaFond “never had any
complications” with his diabetes and Ball “did not consider him to have a disability.” (Resp., p.
9). Morgan cites only Ball’s interrogatory answer in support of these assertions. Yet, there is
absolutely no record evidence LaFond’s diabetes was complication-free. The only available
evidence is that LaFond has diabetes. (Dkt. 25-5, p. 10). Likewise, Morgan relies on Ball’s

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statement that it does not track employee disability in support of his position that Ball did not
regard LaFond as disabled. The two are, of course, not the same. Even more, whether Ball
considered LaFond “disabled” under the ADA is irrelevant. Ball was aware LaFond, like
Morgan, has diabetes. The evicence shows that the two were treated the same. As Morgan’s
argument is completely unsupported by the available facts, his argument carries no weight. See
Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016) (noting that non-moving parties are not entitled
to inferences supported by nothing more than their own speculation) (citing Nichols v. Mich. City
Plant Planning Dept., 755 F.3d 594, 599 (7th Cir. 2014)).
Morgan’s comparator evidence also fails because Holderfield also took an FMLA leave
and was not terminated or placed on a performance improvement plan. (Dkt. 25-5, p. 10).
Morgan’s ADA and FMLA claims rest entirely on a theory that Ball grew frustrated with him
because he took FMLA leave in April 2014. Holderfield’s leave and continued employment
undermines this argument. Morgan attempts to resolve the conflict by arguing – again completely
without support – that Holderfield requested “some” FMLA leave in 2016, implying that it was a
shorter leave than Morgan’s. However, Morgan can point to no evidence regarding the length of
Holderfield’s leave. Thus, Morgan can point to no comparators who were outside his protected
classes who were treated more favorably. Accordingly, the court will grant Ball’s motion for
summary judgment on Morgan’s ADA and FMLA claims.
Next, Ball argues that Morgan has offered nothing to support his age discrimination
claim. Morgan can only avoid summary judgment on his age discrimination claim if he
“produce[s] evidence from which a jury could infer that [his] age ‘was a but-for cause of his
termination.’” Ripberger v. Corizon, Inc., 773 F.3d 871, 880 (7th Cir. 2014) (citing Fleishman v.
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Cont'l Cas. Co., 698 F.3d 598, 604 (7th Cir. 2012); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
176 (2009)); see also Carson v. Lake Cnty., No.: 2:14-CV-117-PRC, 2016 U.S. Dist. LEXIS
124456, *24 (N.D. Ind. Sept. 14, 2016) (citing Ortiz) (noting “a plaintiff may demonstrate a
genuine issue for trial by demonstrating that ‘the evidence would permit a reasonable factfinder
to conclude that the plaintiff's . . . [age]. . . caused the discharge or other adverse employment
action.’”).
Morgan’s age discrimination claim first fails because there is no evidence that Ball
developed an age bias during Morgan’s employment. Ball recruited Morgan to return to the
Maintenance Supervisor position in 2007, when Morgan was already 53 years old, well over the
protected age class. (Morgan Dep. 11:8-9, 41:20-22, 96:2-16). There is no evidence that Ball
somehow acquired an age bias against Morgan less than eight years later and terminated him for
that reason. Morgan’s age discrimination claim also fails for the same reason his ADA and
FMLA claims fail. That is, Morgan cannot rebut Ball’s explanation for his termination with any
convincing evidence of age-related bias. The only evidence Morgan offers in support of his age
claim are alleged comments by Spencer to Morgan that Morgan was an “old man” and
“gummer.” (Morgan 50:14-17, 53:5-8). These types of comments alone simply do not support an
age discrimination claim. See Fleishman, 698 F.3d at 605 (“[I]solated comments are not
probative of discrimination unless they are ‘contemporaneous with the discharge or causally
related to the discharge decision-making process.’”) (citations omitted). Morgan does not allege
Spencer made the comments in conjunction with his termination or discipline. Morgan’s conduct
also undermines his claim that he took Spencer’s statements seriously. Morgan never reported
any alleged comments to a member of management or Human Resources and never complained
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at any point that he believed he was being discriminated against because of his age. (Morgan
Dep. 52:1-15, 67:5-16, 69:25-70:14, 80:22-81:19).
As noted, Morgan also undermines his age claim by claiming first that his age motivated
his termination, and then that it did not, and ultimately admitting he only feels like his age
motivated his termination:
Q.

What leads you to believe that your 60th birthday had anything to do with your
termination?

A.

I don't, particularly. I think me having diabetes and them wanting to get rid of me
all was leading up to, you're not doing your job, you're an old man, this-and-that
type of thing.

Q.

Well, let me try to keep these separate. I want to understand any facts that you
have that lead you to conclude you were terminated because of your age, and so
far you've told me there were some comments by Freddie Spencer.

A.

That's the only reason.

Q.

Anything else?

A.

No. Other than that, I felt like I was 60, and that was part of it.

(Morgan Dep. 39:18 to 40:13). Morgan’s feelings, without more, cannot support his age
discrimination claim.
Morgan also cannot identify any younger employee who received more favorable
treatment. Following Morgan’s termination, Nydeggar, Spencer, and Oteham performed the
Maintenance Supervisor tasks. (Morgan Dep. 124:4-21; Spencer Decl. ¶33; Nydegger Decl. ¶¶47). Spencer is less than two years younger than Morgan and Nydegger is slightly older. (Spencer
Decl. ¶4; Nydegger Decl. ¶3; Morgan Dep. 11:8-9). Accordingly, as Morgan has no evidence of
age discrimination, the court will grant summary judgment in favor of Ball on his ADEA claim.

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Conclusion
On the basis of the foregoing, Ball’s motion for summary judgment [DE 20] is hereby
GRANTED.

Entered: April 6, 2017.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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