COOPER v. CELLCO PARTNERSHIP
Filing
90
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT: For the reasons set forth above, Verizon is entitled to summary judgment on Cooper's claim and its motion for summary judgment (Dkt. No. 49) accordingly is GRANTED. The Plaintiff 39;s Motion to Amend Response in Opposition to Defendant's Motion for Summary Judgment to Label Statement of Material Facts in Dispute Pursuant to Local Rule (Dkt. No. 81) is DENIED as unnecessary ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 9/30/2015. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
THOMAS E. COOPER,
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) Cause No. 1:13-cv-1741-WTL-TAB
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Plaintiff,
vs.
CELLCO PARTNERSHIP D/B/A
VERIZON WIRELESS,
Defendant.
ENTRY ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on Cellco Partnership d/b/a Verizon Wireless’s motion for
summary judgment (Dkt. No. 49). This motion is fully briefed, and the Court, being duly
advised, GRANTS the motion for the reasons, and to the extent, set forth below.
I.
STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the
admissible evidence presented by the non-moving party must be believed and all reasonable
inferences must be drawn in the non-movant’s favor. Hemsworth v. Quotesmith.com, Inc., 476
F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view
the record in the light most favorable to the nonmoving party and draw all reasonable inferences
in that party’s favor.”). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490.
Finally, the non-moving party bears the burden of specifically identifying the relevant evidence
1
of record, and “the court is not required to scour the record in search of evidence to defeat a
motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
II.
BACKGROUND
The facts that follow are taken in the light most favorable to the Plaintiff, Thomas E.
Cooper.1 Additional relevant facts are included in the Discussion section below.
Cellco Partnership d/b/a Verizon Wireless (“Verizon”) is a wireless communication
company with approximately 71,900 employees and retail offices conducting business in Indiana
and throughout the United States. Cooper began his employment in 1988 with GTE, one of
Verizon’s predecessors. He started as a sales representative and was promoted several times
over the years, including to Associate Director of Strategic Sales in 2001. He was responsible
for managing a sales team and handling major accounts in Indiana and, for a time, in some
Kentucky markets. He was also responsible for staffing his sales team. Cooper received various
pay increases and awards throughout his employment, including induction into the “Winners
Circle” and the “President’s Cabinet.”
In August 2011, he began reporting to Eric Spadafora, Director of Business Sales in the
Michigan/Indiana/Kentucky (“MI/IN/KY”) region. That same year, Cooper received the
Associate Director of the Year award for the MI/IN/KY region.
Verizon uses several metrics to evaluate employee performance. Each year, Cooper
received a year-end evaluation, showing mixed results in recent years. In 2008, Cooper received
a rating of “performing” on his year-end evaluation. “Performing” meant “[e]mployee
consistently attains and may periodically exceed job requirements.” Dkt. No. 63-2 at 3. In 2009,
1
Many of the “facts” contained in the Plaintiff’s Factual Background and Statement of
Material Facts in Dispute section are not supported by the evidence of record. The facts set forth
herein are those that are supported by the record.
2
Cooper received a rating of “developing.”2 “Developing” means “[e]mployee meets some but
not all job requirements, improvement needed.” 3 Dkt. No. 63-2 at 3. In 2010, Cooper again
received a “performing” rating.4 With Spadafora as his supervisor, Cooper received a rating of
“performing” on his 2011 year-end evaluation.
By May 2012, however, Spadafora began documenting what he perceived to be Cooper’s
performance deficiencies. He drafted what he termed a “PIP Written Warning” for Cooper and
sent it for review to Stacy Sturgill, Associate Director of Human Resources for the MI/IN/KY
region. Dkt. No. 51-4 at 2-5. It was customary for him to seek guidance from human resources
on implementing performance improvement plans.
In this draft warning, Spadafora outlined areas in which he believed Cooper’s
performance and leadership were lacking. Sturgill commented on the draft document and, in one
instance, questioned whether Cooper was different or being held to a different standard because
Spadafora included a performance issue related to Cooper’s lack of a recruiting funnel, and she
thought that “[n]ot one of [Spadafora’s] managers maintain[ed] a proactive recruiting funnel.”
Dkt. No. 63-4 at 3.
Spadafora revised the document, and on June 21, 2012, he issued to Cooper a Written
Performance Discussion-Verbal Warning for Professional Conduct and Lack of Leadership
2
Cooper states that “[i]n [his] 2009 ‘developing’ evaluation, his supervisor at the time
stated ‘your team has delivered improved results in customer growth and [] your team continues
to improve under your leadership.’” Pl.’s Br. 4 (citing Dkt. No. 51-9 at 6-12). The quoted text,
however, is nowhere to be found in Cooper’s 2009 evaluation. See Dkt. No. 51-9 at 7-12.
3
The 2010 through 2012 evaluations use a slightly different definition for “developing.”
“Developing” meant “performance did not meet objectives, requirements and expectations; some
or all objectives were not met and improvement is needed.” Dkt. No. 51-2 at 91.
4
The 2010 through 2012 evaluations use a slightly different definition for “performing.”
“Performing” meant the “[e]mployee sustained performance meeting objectives, requirements
and expectations and periodically exceeded them.” Dkt. No. 51-2 at 91.
3
(“Verbal Warning”). Dkt. No. 51-2 at 100-02. Spadafora provided the document to Cooper
about ten minutes before a meeting with Cooper’s team, so they did not discuss the document at
that time. Dkt. No. 63-1 at 9-10. Spadafora dropped the document on the table and told Cooper,
“Tom, I like you, but you’ve been in the job too long. It’s time for you to move out. I’ll do
whatever I can to help you.” Dkt. No. 63-1 at 10. Spadafora did not mention his age at all. Dkt.
No. 51-1 at 27.
On July 2, 2012, Cooper and Sturgill had a conference call to discuss the Verbal Warning
and Cooper’s response. Dkt. No. 63-1 at 11-12. Prior to the call, Cooper provided to Sturgill a
41-page response to the Verbal Warning. Pl.’s Br. 8. In addition to discussing various issues
raised by the Verbal Warning and Cooper’s response, Cooper raised concerns of age
discrimination during the call. Dkt. No. 51-5 at 5-6.
Following that conversation, Sturgill investigated Cooper’s age discrimination complaint.
On July 3, 2012, she spoke with Spadafora regarding Cooper’s complaint. Dkt. No. 51-5 at 9.
She also reviewed Spadafora’s hiring decisions for Associate Director positions and found that
he had hired two Associate Directors, Marion Nolan and Marilyn Griggs. Marion Nolan and
Marilyn Griggs were ages 55 and 50, respectively, at the time of hire. Dkt. No. 51-13 at 4. In
addition, she reviewed documents to identify additional individuals Spadafora had put on
progressive discipline. Dkt. No. 51-5 at 11-12. She determined that Spadafora had issued
progressive discipline to one other individual, who was 44 years old at the time. Dkt. No. 51-5 at
11; Dkt. No. 51-13 at 3. That individual was disciplined for “overall performance” / “overall
leadership.” Dkt. No. 51-5 at 11. He left the company voluntarily in Fall 2012. Id. Sturgill also
spoke with in-house counsel regarding Cooper’s age discrimination complaint. Dkt. No. 51-5 at
4
12. When she had concluded her investigation, she contacted Cooper by telephone to let him
know that she “did not find any merit to his concerns.” Dkt. No. 51-5 at 12.
Despite receiving discipline regarding his performance and lack of leadership, Cooper
and his team were meeting or exceeding a set of objective sales measures. In addition to other
performance ratings, Verizon began using “scorecards” in 2012 to evaluate certain sales
performance indicators. Scorecards provided an objective measure of whether sales teams were
meeting specific sales goals. Each Associate Director was expected to achieve at least eightypercent attainment of the scorecard’s performance goal each quarter, as measured on a threemonth rolling average. If an Associate Director did not meet scorecard requirements, she would
potentially be subjected to progressive discipline. Cooper and his team exceeded these
objectives. For example, they achieved 101% and 111% attainments for the third and fourth
quarters of 2012, respectively.
On July 30, 2012, Verizon issued Cooper a mid-year review. Dkt No. 51-4 at 63.
Cooper met objectives in the categories of supervisor responsibilities and training. Dkt. No. 51-4
at 64, 67. He met most of the core values and team development categories’ requirements, with
the exception of an unacceptable level of churn and recruiting and staffing, as his team still
contained vacant positions. Id. at 64, 68-69. He failed to meet the objectives in the following
categories: productivity, customer experience, and reporting. Id. at 64-67.
On January 31, 2013, Cooper received a year-end review for 2012. Dkt. No. 51-4 at 71.
His overall rating was “developing.” Dkt. No. 51-4 at 83. Cooper met objectives in the
categories of supervisor responsibilities and training. Dkt. No. 51-4 at 77. He failed to meet the
objectives in the core values, productivity, customer experience, and reporting categories. Dkt.
No. 51-4 at 72-79. He was then placed on a performance improvement plan. Spadafora’s
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performance summary indicated that “[Cooper] is not meeting the minimum requirements of the
Associate Director of Strategic Sales position. He had previously been placed on a performance
improvement plan for his lack of leadership in 2012 and I have not see [sic] the results improve
at all in 2012.” Dkt. No. 51-4 at 80. Cooper provided comments rebutting specific examples of
lack of performance. Dkt. No. 51-4 at 81-83.
On February 8, 2013, Spadafora issued Cooper a Written Performance DiscussionWritten Warning (“Written Warning”). See Dkt. No. 51-2 at 103-05. The Written Warning
documents a number of performance deficiencies and also several conversations Spadafora had
with Cooper. Id. It also included a number of objectives and action items for Cooper to work on
moving forward. Id. at 104. Spadafora initially created the discipline as a final written warning,
but Sturgill recommended issuing a written warning instead as it had been over six months since
Cooper received the Verbal Warning. Dkt. No. 63-3 at 6-7. Cooper drafted a written response to
the discipline and provided it, along with a suggested action plan he developed, to Sturgill on
February 28, 2013. Dkt. No. 51-2, at 106-08. He also spoke with Sturgill regarding the
discipline and his response. Dkt. No. 51-5, at 13-14.
In April 2013, when the office in which Cooper worked was preparing for remodeling,
Spadafora was informed by Deborah Biddlecombe, Associate Director of Sales Operations, that
Rachel McDuff, Administrative Coordinator, found three boxes in a storage closet containing
approximately 300 phones. Dkt. No. 51-2 at 111-12. The phones were intrinsically safe phones,
a special kind of device that had been used in the construction industry. A customer had
requested to purchase the phones from Cooper in 2011, but did not complete the purchase. Pl.’s
Br. 13. Cooper had ordered the phones from a Verizon office in Texas and, after the sale fell
through, he attempted to return the phones to the Verizon warehouse. Cooper was told that
6
Verizon no longer stocked that type of phone in the warehouse, so he should keep them in the
Indianapolis office. He spoke with other Associate Directors and also with his team to see if
they could sell the phones, but they did not find a customer for them. Instead, the phones were
placed in a locked closet in the Indianapolis office. When located in the closet in April 2013, the
phones were essentially obsolete. Spadafora, however, had inquired into demand related to
intrinsically safe phones in September 2012. Dkt. No. 63-7 at 72. There appeared to be some
demand for them at that time. Id.
When Spadafora learned of the intrinsically safe phones from Biddlecombe, he asked
Cooper to provide him with background on the phones. Dkt. No. 51-2 at 109. It was
Spadafora’s understanding that Cooper decided to take the phones out of inventory and put them
in a closet after they were not sold. Dkt. No. 51-3 at 23. Spadafora indicated that Cooper at no
time had informed him that he had the phones. Dkt. No. 51-4 at 59. Cooper testified that he
believed Spadafora knew about the phones prior to April 2013. First, he said that Spadafora
toured the Indianapolis facility and was shown the phone closet. Dkt. No. 63-1 at 31. He
believes that they discussed the phones. Id. Second, he testified that he either verbally or by email told Spadafora about them in September 2012 when Spadafora requested information on
demand for intrinsically safe phones. Dkt. No. 63-1 at 32.
On May 9, 2013, Spadafora sought approval for Cooper’s termination. See Dkt. No. 51-4
at 59-62. In his request, he explained that Cooper’s “continuing lack of leadership and
professionalism and complete disregard for company assets and policies” were the reasons
Spadafora was seeking approval for Cooper’s termination. Id. at 59. Sturgill reviewed and
revised the termination request, approved it, and sent it to her supervisor for review. See id. at
62; Dkt. No. 51-9 at 5.
7
Cooper was terminated from his employment with Verizon on May 23, 2013. Cooper
discussed his termination with Sturgill. At Cooper’s request, Verizon allowed Cooper to retire.
At the time of his termination, eight Associate Directors reported to Spadafora. Cooper had
worked for the Defendant longer than any other Associate Director.
Cooper filed a charge of discrimination with the Equal Employment Opportunity
Commission on August 19, 2013. Receiving no right to sue letter after more than sixty days
passed since the filing of his charge, Cooper filed his Complaint in this Court on October 30,
2013.
III.
DISCUSSION
Cooper asserts against the Defendant a claim of age discrimination in violation of the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. The Defendant
moves for summary judgment with respect to Cooper’s claim. Under the ADEA, it is unlawful
for an employer to “fail or refuse to hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). To survive a motion for
summary judgment on an ADEA discharge claim, a plaintiff must present evidence of intentional
discrimination through either the direct or indirect method. See Fleishman v. Cont’l Cas. Co.,
698 F.3d 598, 603 (7th Cir. 2012); Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 611 (7th Cir. 2001).
Cooper argues that he can satisfy either method.
A.
Indirect Method
To avoid summary judgment under the indirect method, a plaintiff must offer evidence
that: 1) he is over forty years of age; 2) his performance met his employer’s legitimate
expectations; 3) he suffered an adverse employment action; and 4) a similarly situated,
8
substantially younger employee was treated more favorably. Franzoni v. Hartmarx Corp., 300
F.3d 767, 771-72 (7th Cir. 2002). A similarly situated employee is one whose performance,
qualifications, and conduct are comparable in all material respects. Tank v. T–Mobile USA, Inc.,
758 F.3d 800, 809 (7th Cir. 2014). If a “plaintiff is unable to establish each element of this
prima facie case, summary judgment must be entered in favor of the defendant.” Anders v.
Waste Mgmt. of Wis., 463 F.3d 670, 676 (7th Cir. 2006). If a plaintiff establishes his prima facie
case, the burden shifts to the employer to present a legitimate, non-discriminatory reason for the
adverse employment action. Tank, 758 F.3d at 809. On such a showing, the burden then shifts
back to the plaintiff to show that the employer’s proffered reason is a pretext for discrimination.
Id.
Because Cooper was 62, he satisfies the first element of his prima facie case. It is further
undisputed that Cooper’s termination is an adverse employment action; this satisfies the third
element. Cooper also repeatedly refers to the Verbal and Written Warnings and negative
performance evaluations he received, but these are not adverse employment actions. See Oest,
240 F.3d at 613. “[T]hey can [though] constitute relevant evidence of discrimination with
respect to other employment actions that clearly are adverse employment actions under the
statute.” See id. (citation omitted).
With regard to the second element of his prima facie case, although Cooper primarily
argues that he was meeting Verizon’s legitimate performance expectations, he admits that he was
not meeting some of the performance expectations for which he was disciplined. See, e.g., Dkt.
No. 55 at 8-9. He claims, however, that younger Associate Directors were not held to the same
standards and were not disciplined for the same issues for which he received discipline. Pl.’s Br.
20. “When a plaintiff produces evidence sufficient to raise an inference that the employer
9
applied its legitimate expectations in a disparate manner, the second and fourth prongs of
McDonnell Douglas merge, allowing the plaintiff to establish a prima facie case by establishing
that similarly situated employees were treated more favorably.” Grayson v O’Neill, 308 F.3d
808, 818 (7th Cir. 2002) (citing Peele v. Country Mutual Ins. Co., 288 F.3d 319, 329–30 (7th Cir.
2002); Curry v. Menard, 270 F.3d 473, 478 (7th Cir. 2001); Johnson v. West, 218 F.3d 725, 733
(7th Cir. 2000); Flores v. Preferred Tech. Group, 182 F.3d 512, 515 (7th Cir. 1999)). The Court
will assume for purposes of this Entry that Cooper has produced evidence sufficient to show that
Verizon applied its legitimate expectations in a disparate manner and, for that reason, moves to
the fourth prong of the McDonnell Douglas analysis.
Cooper argues that he meets his burden with regard to the fourth element because his
replacement was 33 years old. Pl.’s Br. 18. That Cooper was replaced by an employee outside
the protected class does not establish this element; rather, that “modified McDonnell Douglas
test” applies in the context of a mini-reduction in force. Merillat v. Metal Spinners, Inc., 470
F.3d 685, 689 (7th Cir. 2006) (“[U]nder the modified McDonnell Douglas test appropriate in a
‘mini-RIF’ situation, the fourth prong of the plaintiff’s prima facie case is satisfied when the
plaintiff demonstrates that her duties were absorbed by persons not in the protected class.”).
Cooper, however, was terminated for performance issues, so the proper inquiry is whether
“similarly situated, substantially younger employees were treated more favorably.” Fleishman,
698 F.3d at 609 (quoting Franzoni, 300 F.3d at 772).
Apart from his replacement, Cooper admits that he cannot point to any similarly “situated
employee under forty for the purpose of comparison.” Pl.’s Br. 16. There is, however, no
requirement that comparators be outside the protected class. See O’Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 312 (1996) (Comparators in an age discrimination case are
10
persons “substantially younger” than the plaintiff, regardless of whether they are members of the
protected class). Instead, the prima facie case requires only that a comparator be “substantially
younger.” Fleishman, 698 F.3d at 609 (quoting Franzoni, 300 F.3d at 772). The Seventh Circuit
considers “a ten-year difference in ages . . . to be presumptively ‘substantial.’” Hartley v.
Wisconsin Bell, Inc., 124 F.3d 887, 893 (7th Cir. 1997).
Cooper names six Associate Directors as similarly situated comparators: Marilyn Griggs,
James McIlhon, Michael Meier, Marion Nolan, Matthew Nixon, and Gary Rowe.5 Of the six,
two, James McIlhon and Marion Nolan, are fewer than ten years younger than Cooper.
Accordingly, they are not presumptively substantially younger than Cooper and, therefore, they
are not considered as comparators.6 Radue v. Kimberly-Clark Corp., 219 F.3d 612, 619 (7th Cir.
2000) (finding seven- and 9½-year age differences not “substantial”). The other four employees
are substantially younger: Marilyn Griggs is ten years younger than Cooper, and Michael Meier,
Matthew Nixon, and Gary Rowe are more than ten years younger than Cooper.
The similarly situated test generally requires a plaintiff to show that the comparators had
the same supervisor, were subjected to the same employment standards, and engaged in conduct
similar to that of the plaintiff “without such differentiating or mitigating circumstances as would
distinguish their conduct or the employer’s treatment of them.” Id., 219 F.3d at 617-18; see also
Eaton v. Ind. Dep’t of Corr., 657 F.3d 551, 556 (7th Cir. 2011).
5
Cooper’s argument is more fragmented than it appears here. In discussing McDonnell
Douglas’s fourth element, he does not name the comparators. See Pl.’s Br. 20. Their names,
however, are scattered throughout the fact section. See Pl.’s Br. 11-12.
6
“In cases where the [age] disparity is less [than ten years], the plaintiff still may present
a triable claim if []he directs the court to evidence that [his] employer considered [his] age to be
significant,” which might make the age disparity irrelevant “because the employee’s case likely
would be one of direct evidence, not the burden-shifting indirect evidence framework.” Hartley,
124 F.3d at 893. Cooper has presented no such evidence.
11
Griggs, Meier, Nixon, and Rowe worked as Associate Directors at the same time as
Cooper, were supervised by Spadafora, and performed work the same as or similar to Cooper.
Cooper argues that these employees “were not meeting Verizon’s criteria, [yet] they were not
disciplined and were given ‘performing’ or ‘leading’ ratings” in their mid-year or year-end
evaluations. Pl.’s Br. 11.
Specifically, Cooper argues that Rowe’s 2012 year-end review ranked him as
“performing,” but “he was not meeting the criteria for sales activity, customer experience and
quarterly business review.” Pl. Br. 12. The evidence does not show that Rowe received more
favorable treatment than Cooper. Rather, Cooper has taken the described performance indicators
out of their proper contexts. In addition to an overall summary ranking, there are seven broad
objectives that year-end evaluations cover: supervisor responsibilities, core values, productivity,
customer experience, training, reporting, and team development. See, e.g., Dkt. No. 51-5 at 7179. Rowe did not fail to meet any of the seven objectives. Rather, he did not meet criteria
related to three specific performance measures within the productivity and customer experience
objectives. Cooper, on the other hand, failed to meet five of the seven broad objectives,
including a number of quantitatively objective sub-categories within those objectives. In this
respect, Cooper and Rowe are not similarly situated.
With respect to Griggs, Cooper argues that her 2013 mid-year evaluation stated that she
was “performing well,” but she “was not meeting the grow revenue requirements and was not
meeting the customer experience requirements.” Pl.’s Br. 11-12. Like the year-end evaluations,
the mid-year evaluations also contain a number of broad objectives.7 Griggs was not meeting
7
The 2013 mid-year review contains nine, while the 2012 mid-year evaluation contained
the same seven found in the year-end review. See Dkt. Nos. 72 at 2-7 and 51-4 at 63-70,
respectively.
12
two of the nine broad objectives by which she was evaluated. In both instances, however,
Spadafora indicated that Griggs was “very close to meeting the objectives” and thought that they
“[could] be achieved by the end of the year.” Dkt. No. 72 at 3-4. Cooper was terminated prior to
the 2013 mid-year review, but when compared with his 2012 mid-year review, he and Griggs are
not similarly situated. Cooper failed to meet three of the seven broad objectives, and there is no
indication in the review that he was close to meeting the objectives or could achieve the
necessary results by the end of the year. See Dkt. No. 51-4 at 63-70. As was also the case with
Rowe, Cooper points to no other instances of more favorable treatment related to Griggs and
does not suggest that she should have been disciplined or terminated for these or other
performance issues.
With respect to Nixon, Cooper again turns to disparities in year-end evaluation results.
Cooper notes that Nixon’s 2012 year-end evaluation ranks him as “leading,” but he “was not
meeting several categories of productivity and personal sales activity among other things.” Pl.’s
Br. 11. Unlike Cooper, Nixon did not fail to meet any of the seven objectives. See Dkt. No. 72
at 31-39. Rather, like Rowe, he did not meet criteria related to a few specific performance
measures within the productivity objective, but he was also leading the Associate Directors in
other metrics. Id. In this respect, Cooper and Nixon are not similarly situated.
Cooper also alleges that he was written up for failing to win the Rolls Royce account
while “at least one other associate director failed to procure a large account and was not written
up.” Pl.’s Br. 19. The Court assumes that Cooper is referring to Meier and finds no evidence in
the record referring to any other Associate Directors failing to procure accounts. Spadafora
testified that “[Cooper] was never written up for not getting the Rolls Royce contract”; rather,
that failure was referred to “[a]s an example of his lack of engagement and lack of leadership,
13
not because he didn’t win the business.” Id. at 14-15. The Verbal Warning supports Spadafora’s
testimony that the failure to win the Rolls Royce account is but one example of Cooper “not
own[ing] relationships with key accounts,” a facet of his lack of engagement and leadership. See
Dkt. No 55 at 5. Again, Cooper has not shown that he and Nixon are similarly situated. Cooper
does not present evidence that he was disciplined for failing to win the Rolls Royce account, nor
does he show that Nixon otherwise had the same performance issues that were addressed in his
Verbal Warning and was not disciplined.
Cooper argues that Meier was treated more favorably with respect to the outcome of his
2012 mid-end evaluation and that “Spadafora chose not to discipline him for not meeting his
Scorecard and instead helped him obtain a different position in the company.” Pl.’s Br. 11-12;
see also id. at 20.
With respect to Meier’s mid-year evaluation, it does not appear that Meier failed to meet
any of the broad objectives evaluated, see Dkt. No. 72 at 23-29, whereas Cooper failed to meet
three of them. See Dkt. No. 51-4 at 63-70. Cooper points out that Meier failed to meet various
objective measures within the broad objectives, but this, again, is not comparable to failing to
meet the broad category objectives. In addition to the performance issues in his mid-year
evaluation, Meier also did not meet the eighty-percent requirement on the scorecard evaluation, a
metric that Cooper met. Dkt. No. 71 at 2.
Cooper argues, without evidentiary support, that “Verizon’s policy was to subject
associate directors [to discipline] for failing to meet this objective criteria” and that Meier was
not disciplined.8 Pl.’s Br. 20. With this added performance failure, Meier comes closer to the
8
Cooper cites to Spadafora’s deposition testimony at 140:16-141:2 [Dkt. No. 71 at 2-3]
to support his proposition regarding Verizon’s policy, but the cited testimony does not address
14
similarly situated mark than the other comparator employees. There are, however,
“differentiating or mitigating circumstances” that distinguish Meier’s conduct from Cooper’s “or
the employer’s treatment of [the two employees].” Radue, 219 F.3d at 617-18. Spadafora
testified that Meier “took on a new team, a new assignment . . . and for the first quarter of this
assignment was treated as a new hire and thereby was not put into a performance management
situation.” Dkt. No. 71 at 3. In this respect, Meier was not similarly situated to Cooper. Despite
the lack of disciplinary action against Meier, Spadafora testified that he nonetheless spoke with
Meier regarding performance issues around the end of the second quarter of 2012, a conversation
that he characterized as “very similar in nature to the one that I had with [Cooper on June 21,
2012],” and Meier stated that he wanted to move into another division of the company, Dkt. No.
71 at 3, which he did in July 2013. See Dkt. No. 61 at 3.
Although these employees were not meeting every performance indicator by which they
were evaluated, Cooper has not provided evidence that the Associate Directors who avoided
reprimand and termination shared a “comparable set of failings” with him. Fass v. Sears,
Roebuck & Co., 532 F.3d 633, 642 (7th Cir. 2008) (internal quotations omitted). Verizon’s
reason for terminating Cooper was his “continuing lack of leadership and professionalism and
complete disregard for company assets and policies.” Dkt. No. 51-4 at 59. Other Associate
Directors may have failed to meet various performance metrics, but Cooper does not allege that
they exhibited his other performance deficiencies, such as his continuing lack of leadership or
disregard for company assets and policies. See, e.g., Burks v. Wis. Dep’t of Transp., 464 F.3d
this topic. Testimony from Sturgill, on the other hand, stated that those with scorecard
deficiencies could “potentially” be held to progressive discipline. Dkt. No. 63-3 at 9.
15
744, 751-52 (7th Cir. 2006). As a result, none of the individuals is similarly situated. Fass, 532
F.3d at 642-43; Burks, 464 F.3d at 752.
Drawing all reasonable inferences in Cooper's favor, the Court finds that Cooper has not
demonstrated that there is a genuine issue of triable fact as to whether similarly situated
employees outside the protected class were treated differently. Cooper, therefore, did not
establish a prima facie case under the indirect method.
Furthermore, the Court notes that in addition to being unable to establish his prima facie
case, Cooper also has not submitted evidence that creates a genuine issue of material fact with
regard to the issue of pretext.
Cooper claims that Verizon’s legitimate performance expectations were disparately
applied. As a result, the Court combines the second prong analysis with the pretext analysis.
Faas, 532 F.3d at 642; see also Hague v. Thompson Distribution Co., 436 F.3d 816, 823 (7th
Cir. 2006) (“[I]f the plaintiffs argue that they have performed satisfactorily and the employer is
lying about the business expectations required for the position, the second prong and the pretext
question seemingly merge because the issue is the same—whether the employer is lying.”).
Cooper must demonstrate sufficient evidence of pretext in order to show that he was meeting
Verizon’s legitimate performance expectations.
“To demonstrate a material issue of fact as to pretext, [a plaintiff] must show that ‘either
1) it is more likely that a discriminatory reason motivated the employer than the proffered nondiscriminatory reason or 2) that an employer’s explanation is not credible.’” Mullin v. Temco
Mach., Inc., 732 F.3d 772, 778 (7th Cir. 2013) (quoting Hudson v. Chi. Transit Auth., 375 F.3d
552, 561 (7th Cir. 2004)). “An unwise employment decision does not automatically rise to the
level of pretext; rather, a party establishes pretext with evidence that the employer’s stated
16
reason or the employment decision ‘was a lie—not just an error, oddity, or oversight.’” Teruggi
v. CIT Grp./Capital Fin., Inc., 709 F.3d 654, 661 (7th Cir. 2013) (quoting Van Antwerp v. City of
Peoria, Ill., 627 F.3d 295, 298 (7th Cir. 2010)).
In each instance of discipline, Cooper provides explanations for why he believes the
performance deficiencies were out of his control or why his actions did not merit discipline. He
also attempts to create an issue out of whether Spadafora knew about the intrinsically safe
phones prior to their reappearance in April 2013. As Verizon notes, this is not a material fact.
Def.’s Reply 12. Even if Spadafora had previously been informed that the phones were there,
that does not change the fact that Cooper was responsible for them and that he failed to deal with
them appropriately. To Spadafora, this was just another example of Cooper’s lack of leadership.
He again was not taking ownership as an Associate Director. As Sturgill noted in Spadafora’s
request to terminate Cooper, “[Cooper] has not taken ownership of his performance or done
anything proactively to improve his leadership. Eash [sic] time I investigate, I find no
wrongdoing on the part of the director. Instead, I find that there is always a lack of
communication or understanding on [Cooper]’s part of his performance deficiencies and the
seriousness of them.” Dkt. No. 51-4 at 62.
As Verizon notes, Cooper’s situation is analogous to the plaintiff’s in Widmar v. Sun
Chem. Corp., 772 F.3d 457 (7th Cir. 2014). In Widmar, the plaintiff was terminated for
performance reasons after sixteen years as a plant manager. Id. at 459. Widmar did not believe
that the problems identified by his employer were his fault. Id. at 460. Instead, he believed that
his employer “falsely blamed [him] to cover up for the fact that it was firing him because of his
age.” Id. Many of the performance problems identified by his employer were, Widmar believed,
simply problems with products produced in the plant, not problems with his performance. Id. at
17
464. He did not believe that those product issues were his fault. Id. at 463-64. The company
disagreed because, as plant manager, Widmar was responsible for “seek[ing] out problem areas,
even if they were the ‘fault’ of others and fix[ing] them.” Id. at 464. At one point, Widmar,
similar to Cooper, claimed that his supervisor knew of a problem but still blamed him for it. Id.
at 466. As is the case with Cooper, the dispute centered on the employee’s understanding of the
scope of his responsibilities. Id. The Seventh Circuit found that Widmar failed to offer any
evidence of pretext, noting that “[i]n each case the result is the same. Widmar claims he is not at
fault. Sun Chemical expected him to be more proactive and less finger-pointing in his approach
to management.” Id. at 467.
The Court finds the same result here. Cooper had performance deficiencies that he
believed were out of his control. Verizon disciplined him for his “overall lack of performance,
accountability and leadership for his sales team,” providing him numerous examples to support
its position. See, e.g., Dkt. No. 51-2 at 103. Cooper has provided “nothing more than
speculation that the blaming was a mask for discrimination.” Widmar, 772 F.3d at 465. As the
Seventh Circuit notes, a pretext means “something worse than a business error; pretext means
deceit used to cover one’s tracks. Being blamed unfairly is not evidence of deceit.” Id. at 466
(internal quotation and citation omitted). Cooper has failed to offer evidence from which a
reasonable jury could conclude that Verizon’s reasons for his termination were pretextual.
B.
Direct Method
“To avoid summary judgment under the direct approach, the plaintiff must produce
sufficient evidence, either direct or circumstantial, to create a triable question of intentional
discrimination in the employer’s decision.” Silverman v. Bd. of Educ. of City of Chi., 637 F.3d
729, 733 (7th Cir. 2011). When no statements exist that directly evidence discrimination, such
18
as “I fired Judy because she was an old woman,” Gorance v. Eagle Food Ctrs., Inc., 242 F.3d
759, 762 (7th Cir. 2001), a plaintiff can survive summary judgment by “constructing a
convincing mosaic of circumstantial evidence” that would permit a reasonable jury “to infer
intentional discrimination by the decisionmaker.” Ridings v. Riverside Med. Ctr., 537 F.3d 755,
771 (7th Cir. 2008). Generally, but not exclusively, the pieces of the mosaic will fall into three
categories: 1) “suspicious timing, ambiguous statements oral or written, and other bits and pieces
from which an inference of [discriminatory] intent might be drawn”; 2) “evidence, but not
necessarily rigorous statistical evidence, that similarly situated employees were treated
differently”; and (3) “evidence that the employer offered a pretextual reason for an adverse
employment action.” Perez v Thorntons, Inc., 731 F.3d 699, 711 (7th Cir. 2013). In sum, if the
aggregation of circumstantial evidence is sufficient to suggest that an employment-related
decision was based on age, granting summary judgment is inappropriate. See Sylvester v. SOS
Children's Vills. III., Inc., 453 F.3d 900, 904 (7th Cir. 2006) (analyzing evidence under mosaic
theory in race discrimination context). The circumstantial evidence, however, “must point
directly to a discriminatory reason for the employer’s action.” Adams v. Wal-Mart Stores, Inc.,
324 F.3d 935, 939 (7th Cir. 2003).
Cooper does not allege that the Defendant made statements directly evidencing
discrimination. Instead, he argues that there exists a convincing mosaic of circumstantial
evidence permitting the inference of intentional discrimination on the part of Spadafora. He
attempts to create his mosaic from various pieces of evidence as follows.
Cooper cites two statements made by Spadafora as evidence of discriminatory intent:
First, he alleges that at the time he was issued his Verbal Warning on June 21, 2012, Spadafora,
said to him: “Tom, I like you, but you’ve been in the job too long. It’s time for you to move out.
19
I’ll do whatever I can to help you.” Dkt. No. 63-1 at 10. Second, he attributes the following
statement to Spadafora: “[T]enured employees did not sell new products and services as well as
newer employees.”9 Pl.’s Br. 5.
Cooper also characterizes the timing of his termination as suspicious because he was
terminated prior to being subjected to all of the steps in Verizon’s progressive discipline process.
Pl.’s Br. 17. Cooper reasons that “[Human Resources] would not allow Spadafora to issue a
final written warning,” so he “concocted a reason to immediately terminate Cooper.” Pl.’s Br.
17.
Cooper also argues that he was singled out for an audit and “belittled and treated more
harshly than the younger associate directors.” Pl.’s Br. 17, 20. Cooper testified that Spadafora
chastised him in front of his peers on “pretty much every” staff meeting telephone call in the
weeks before he was terminated and less often prior to that time. Dkt. No. 63-1 at 27; 29. He
specifically remembered that, on one of the calls, Spadafora asked him, “Did your people go to
sleep this month?” and that, although he could not remember any other specific statements,
Spadafora’s voice inflection was “somewhere between mocking and derision.” Dkt. No. 63-1 at
28.
As further evidence of the mosaic, Cooper points to Sturgill’s questioning Spadafora
regarding a comment he included in a draft of the Verbal Warning. Pl.’s Br. 17. He stated:
“[Cooper] has not been able to maintain a recruiting funnel for his team, which is required in his
role.” Sturgill’s explanation Dkt. No. 63-3 at 3-4. Sturgill responded as follows: “I don’t
9
Verizon argues that this comment is inadmissible hearsay. However, in defending
against the discrimination claim by another employee, Verizon itself stated that Spadafora made
that comment. See Dkt. No. 75, at 8. Accordingly, pursuant to Federal Rule of Evidence
801(d)(2), it appears to the Court that it is a statement by a party opponent and therefore is not
hearsay.
20
understand this one. Not one of your managers maintains a proactive recruiting funnel. I’m not
sure how Tom is different or why we are holding him to a different standard.” Dkt. No. 63-4 at
3.
Viewing the facts in Cooper’s favor, the Court is unpersuaded that the evidence creates a
triable issue of discrimination under the direct method.10 The comment made by Spadafora at
the time of Cooper’s June 21, 2012, Verbal Warning does not refer to Cooper’s age and was
unrelated to the termination decision. Stopka v. Alliance of Am. Insurers, 141 F.3d 681, 688 (7th
Cir. 1998) (“When a plaintiff proceeds under the direct proof method, allegedly discriminatory
statements are relevant . . . only if they are both made by a decisionmaker and related to the
employment decision at issue.”). Cooper himself conceded in his deposition that the same
comment could be made to someone outside the protected class. He agreed that “[i]t’s not just
older employees who lose their effectiveness in a position,” and that possibly “[s]omebody who
others would describe as young can be in a position too long and lose their effectiveness in that
position.” Dkt. No. 51-1 at 27-28. He also admitted that Spadafora did not mention his age.
Dkt. No. 51-1 at 27. Moreover, Cooper testified that, in the same conversation in which
Spadafora told him that he had “been the job too long,” he also said, “I’ll do whatever I can to
help you.” Dkt. No. 63-1 at 10. Coupled with Spadafora’s clear statement of his intent to help
Cooper, Spadafora’s comment just as readily could have referred to Cooper’s lack of
effectiveness as an Associate Director rather than Cooper’s age. Cooper’s belief that the
10
Cooper reiterates additional arguments already addressed in the indirect method
analysis: According to Cooper, not only was he replaced by a younger employee, but younger
associates were not held to the same standard as he was and were not disciplined for the same
issues for which he received discipline or when company policy indicated that they should have
been. Pl.’s Br. 17. As discussed above, the evidence of record does not support these
arguments.
21
comment proves age-related bias on the part of Spadafora does not create a genuine issue of
material fact. See Fairchild, 147 F.3d at 574 (quotation omitted); Mills v. First Fed. Savings and
Loan Ass’n of Belvidere, 83 F.3d 833, 841–42 (7th Cir. 1996) (quoting Visser v. Packer Eng’g
Assocs., 924 F.2d 655, 659 (7th Cir. 1991) (“[I]f the subjective beliefs of plaintiffs in
employment discrimination cases could, by themselves, create genuine issues of material fact,
then virtually all defense motions for summary judgment in such cases would be doomed.”)).
Similarly, Spadafora’s comment regarding “tenured employees” does not suggest
discriminatory intent. It is unclear from the record whether the comment was made to Cooper,
related to him in any way, or was even made while he was employed by Verizon. And again, the
comment does not refer to the age of any employee and could just as easily be directed at
employees outside the protected class. This comment is too ambiguous to allow an inference of
discriminatory intent. See Hoffman v. MCA, Inc., 144 F.3d 1117, 1122 (7th Cir. 1998) (comment
not regarding age and referring to another employee not probative of intent to discriminate
against plaintiff on the basis of his age).
The fact that Spadafora did not follow all steps in Verzion’s progressive discipline
process also is not indicative of discrimination in this instance. Cf. Hanners v. Trent, 674 F.3d
683, 694 (7th Cir. 2012) (“Significant, unexplained or systematic deviations from established
policies or practices can no doubt be relative and probative circumstantial evidence of
discriminatory intent.”). Progressive discipline under Verizon’s policy was not mandatory and
sequential. Sturgill testified that there are three steps in the process, but that they do not
necessarily flow in “an A-to-C progression,” and the process does not require “step[ping]
through all three in order to get to termination.” Dkt. No. 63-3 at 2. In addition, Sturgill was
aware of the steps that Spadafora had taken in the progressive discipline process because she
22
reviewed and revised each disciplinary document before it was issued. In addition, she reviewed
the termination request and approved the termination herself.
Cooper’s argument that he was singled out for an audit is not supported by the evidence.
Spadafora conducted an audit of Cooper’s year-to-date net performance because he found a
substantial number of disconnected phone lines in two of Cooper’s accounts. Dkt. No. 70 at 23. He believed that the company was “potentially losing money in [Cooper’s] organization and
he was unaware.” Dkt. No. 70 at 2-3. Spadafora conducted an audit for the entire organization.
Dkt. No. 63-5, at 3-4. There is no material fact in dispute related to the audit.
With respect to Cooper’s claim that he was belittled and treated more harshly, he does not
provide any evidence that Spadafora’s conduct was based on discriminatory animus. The one
comment he recalls is not inherently ageist, and despite Cooper’s subjective belief, he does not
present evidence that there was any connection between Spadafora’s alleged mocking and
derisive inflection and Cooper’s age. See Fairchild v. Forma Sci., Inc., 147 F.3d 567, 574 (7th
Cir. 1998) (“[S]ubjective beliefs of the plaintiff . . . are insufficient to create a genuine issue of
material fact.”) (internal quotation and citation omitted).
At first glance, Sturgill’s suggestion that Spadafora was holding Cooper to a different
standard in demanding that he maintain a recruiting funnel is Cooper’s strongest evidence to
support an inference of discrimination. It appears, however, that Sturgill was incorrect when she
said that “[n]ot one of [Spadafora’s] managers maintains a proactive recruiting funnel.” Dkt. No.
63-4 at 3. Performance evaluations for other Associate Directors indicate that Spadafora
expected them to maintain recruiting funnels, and they did. See e.g., Dkt. No. 72 at 4, 18, 26, 36,
53, 70. In 2012, both mid-year and year-end evaluations contain within the team development
category a performance metric related to the Associate Directors’ recruiting funnel: “Keep
23
prospect funnel of candidates (keep bench full) and achieve full staffing levels per the 2012 ramp
plan.” Dkt. No. 72 at 18, 26 (year-end and mid-year, respectively). Therefore, Spadafora was
not holding Cooper to a different standard. He in fact expected Associate Directors to maintain
recruiting funnels, and he used this measure to evaluate their performance. See, e.g., Dkt. No. 72
at 19, 27, 36, 54, and 70, respectively (Spadafora’s comments include the following: “[McIlhon]
is at headcount and maintains an active bench”; “Micheal [sic] is doing a good job at recruiting
and maintaining a solid bench of new candidates for all his positions”; “Matt is compliant with
this metric though I would like to see a deeper bench from his BSM’s and a stronger funnel of
new hires to ensure his cycle time decreases going into 2013”; “Marion has really focused on
staffing as a key differentiator for her organization and recruiting the right people is a strength
she continues to leverage to achieve desired results”; “Steve has done fairly well in keeping
candidates in the funnel but performed exceptionally well in hiring top quality B2B sales
personnel”). Spadafora continued to use a similar metric in 2013. See Dkt. No. 72 at 4 (under
the leadership description and measures in Griggs’ mid-year review: “Headcount: Keep prospect
funnel of candidates. Achieve and maintain full staff levels per the 2013 staffing plan”). Given
this complete context, Sturgill’s comments do not lend support for Cooper’s mosaic theory.
Cooper has not constructed a convincing mosaic of circumstantial evidence that raises the
inference of intentional discrimination. See Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th
Cir. 2003). Taken together, the pieces of Cooper’s mosaic do not “point directly to a
discriminatory reason for the employer’s action.” Adams, 324 F.3d at 939. For all of the reasons
stated above, Cooper’s claim for age discrimination fails under the direct method as well.
24
IV.
CONCLUSION
For the reasons set forth above, Verizon is entitled to summary judgment on Cooper’s
claim and its motion for summary judgment (Dkt. No. 49) accordingly is GRANTED. The
Plaintiff’s Motion to Amend Response in Opposition to Defendant’s Motion for Summary
Judgment to Label Statement of Material Facts in Dispute Pursuant to Local Rule (Dkt. No. 81)
is DENIED as unnecessary.
SO ORDERED: 9/30/15
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Copies to all counsel of record via electronic notification.
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