Tramp v. Associated Underwriters, Inc.

Filing 70

MEMORANDUM AND ORDER - The Defendant's Motion for Summary Judgment (Filing No. 46 ) is granted. This action is dismissed with prejudice. All pending motions in this case are denied as moot. A separate judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (GJG )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARJORIE TRAMP,
Plaintiff,

CASE NO. 8:11CV371

vs.
MEMORANDUM AND ORDER
ASSOCIATED UNDERWRITERS, INC.,
Defendant.

This matter is before the Court on the Defendant’s Motion for Summary
Judgment (Filing No. 46). The parties have submitted briefs (Filing Nos. 47, 53, 60) and
indexes of evidence (Filing Nos. 49, 54, 56) in support of their respective positions. For
the reasons discussed below, the Motion will be granted, and this action will be
dismissed with prejudice.
BACKGROUND
The following is a summary of facts presented in the parties’ briefs.

The

Defendant submitted a numbered statement of material facts, supported by pinpoint
citations to evidence in the record in compliance with NECivR 56.1(a). Plaintiff also
submitted a numbered statement of “additional material facts,” but did not respond to
the Defendant’s statement of facts as required by NECivR 56.1(b). Accordingly, all
properly referenced material facts in the Defendant’s statement are considered admitted
unless controverted in the Plaintiff’s response.1
Plaintiff, Marjorie Tramp (“Plaintiff), was hired by the Defendant, Associated
Underwriters, Inc., (“Defendant” or “Associated Underwriters”) in 2000. Associated
1

“Properly referenced material facts in the movant’s statement are considered admitted unless
controverted in the opposing party’s response.” NECivR 56.1(b)(1).

Underwriters was purchased by Greg Gurbacki (“Gurbacki”) and Chris Hallgren
(“Hallgren”) in August 2007. At the time of the purchase, Hallgren served as President
of Associated Underwriters. In that capacity, Hallgren was in charge of the company’s
annual valuation, its bookkeeping, and the management of its computers. Hallgren was
not involved in the hiring and firing of employees. Beginning in 2007, Gurbacki ran
Associated Underwriter’s office, reviewed the company’s financial condition, and was in
charge of the hiring and firing of employees. At the time of the 2007 purchase,
Associated Underwriters was operating at a loss, and it continued to operate at a loss
into 2012.
Due to economic difficulties, Associated Underwriters underwent a Reduction-inForce (“RIF”) in 2007 (the “2007 RIF”). In total, seven employees were let go as part of
the 2007 RIF. Gurbacki decided who to let go based on his opinion of the quality of the
employees’ work.

The Plaintiff was not let go during the 2007 RIF, even though

Gurbacki had concerns about her job performance. Gurbacki did believe that the
Plaintiff was a better performer than employees that were let go in the 2007 RIF.
In July 2008, Associated Underwriters was still struggling and had what Gurbacki
and Hallgren described as severe financial problems. At that time, the company’s
income and expense sheets were negative. To save money, Gurbacki suggested the
elimination of the company’s health insurance program. Hallgren opposed this idea.
Rather than cut health insurance or undergo another RIF in 2008, Associated
Underwriters cut other expenses by consolidating offices and cutting the company’s
advertising budget.

2

In the summer of 2008, Associated Underwriters experienced an 18 percent price
increase in its group healthcare plan. As a result, Hallgren solicited proposals through
several different companies. Hallgren filled out enrollment forms in order to obtain new
quotes for group coverage. The enrollment forms requested the age of each of the
company’s employees. The resulting quote from at least one insurer reflected
significantly lower premiums compared to the proposal submitted by other insurance
companies. Upon investigation, Hallgren learned that the insurer did not include the
Plaintiff and another employee, Barb Treadway (“Treadway”), within the proposal. A
representative from the insurer explained to Hallgren that this was because people over
the age of 65 “usually don’t get quoted” as they are Medicare eligible. Upon Hallgren’s
request, the insurer provided a revised quote that included the Plaintiff and Treadway in
its proposal for group coverage. The modified proposal showed a significant increase in
premiums when Plaintiff and Treadway were included, particularly with family coverage.
Hallgren believed that a substantial savings in health insurance premiums would
benefit Associated Underwriters’ employees and the company overall. Accordingly,
Hallgren met with the Plaintiff and Treadway in July 2008, and suggested that they
utilize Medicare instead of the company’s healthcare plan. Hallgren claims that in this
meeting he offered to cover 100% of a Medicare supplement, and believed that would
provide better coverage for both Plaintiff and Treadway, in addition to cutting costs for
the company. Plaintiff denies that Hallgren offered to cover the cost of Medicare
Supplements. Plaintiff and Treadway decided to stay on the Defendant’s healthcare
plan.

3

Gurbacki testified during his deposition that he regularly evaluated his employees
and examined how the employees treated customers, including whether people
benefitted from their support, whether they were difficult with customers, and whether
the employees completed assigned tasks. In comparison to other employees, Gurbacki
considered the Plaintiff to be the least efficient performer. The Plaintiff questioned
Gurbacki on various business decisions, including when to cancel an insurance policy.
According to Gurbacki, Plaintiff did not want to cancel certain policies because it would
have been “harder” on the Plaintiff to do so. Plaintiff repeatedly failed to cancel
insurance policies when asked. Gurbacki thought Plaintiff was incapable of helping
customers transition smoothly between their current insurer to Associates Underwriters’
insurers.
On October 9, 2008, Plaintiff was formally reprimanded for poor performance.
This reprimand identified three examples of the Plaintiff’s poor performance. In
particular, Plaintiff’s formal reprimand documented the following performance problems:
(1) Plaintiff mistakenly added the same vehicle on two policies – one with liability only
and one with full coverage, and then deleted the liability only policy; (2) Plaintiff
cancelled insurance coverage for a house located in a hurricane zone resulting in a
higher premium and deductible when the customer tried to reinstate coverage; and (3)
Plaintiff failed to cancel policies in addition to causing renewals to be sent out when they
had already been stopped. (Filing No. 49-3). Following her formal reprimand, Plaintiff
was placed on a 90-day probationary period. She was taken off probation in January
2009. In addition to the three incidents for which the Plaintiff was formally reprimanded,
Gurbacki claims that he had other concerns with the Plaintiff’s job performance. For
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example, Gurbacki thought Plaintiff had an uncooperative attitude. In addition, Gurbacki
claims that Plaintiff received additional verbal warnings.
On February 3, 2009, Associated Underwriters underwent another RIF (the “2009
RIF”) due to its poor financial performance. Prior to the RIF, Hallgren told Gurbacki that
the Company needed to make cuts. In response, Gurbacki made the decision to lay off
employees. In total, four employees were let go, including the Plaintiff. Other employees
terminated were: Treadway, 72 years old; Stacy Bell, 38 years old; and Andrea Altrock,
39 years old. Three of the terminated employees worked in commercial lines. The
Plaintiff worked in personal lines. Gurbacki asserts that he did not base his decision to
terminate the Plaintiff on her age or because she refused the offer for alternative
healthcare coverage. Instead, Gurbacki testified that he chose to include Plaintiff in the
2009 RIF because of her historically poor job performance. (Filing No. 45-4, Gurbacki
Depo, at 79: 5-21, 100: 13-20). Defendant did not replace Plaintiff after her termination.
Instead, Plaintiff’s job duties were divided between the four employees in the personal
lines department. These employees included Sandy Peer – 49; Sue Stilmock – 46;
Kelsey Hetrick – 25; and Bob Dunn – 66.
Plaintiff alleges a single theory of recovery, claiming that she was harassed,
retaliated against, and terminated based on her age, race, disability, and sex. (Filing
No. 1 ¶ 15.) Plaintiff asserts that she is entitled to recovery under Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e-5, the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 626, and 42 U.S.C. § 1981. (Filing No. 1 ¶ 3.) Elsewhere, Plaintiff claims
she is also entitled to recovery under the Americans with Disabilities Act (the “ADA”), 42

5

U.S.C. §§ 12102. (Filing No. 1 ¶ 15; Filing No. 21 at 22.) Defendant filed the present
Motion asserting that the Plaintiff’s claims each fail as a matter of law.
STANDARD
“Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, demonstrates there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” Gage v. HSM
Elec. Prot. Serv., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed. R. Civ. P. 56(c)).
The court will view “all facts in the light most favorable to the non-moving party and
mak[e] all reasonable inferences in [that party's] favor.” Schmidt v. Des Moines Pub.
Sch., 655 F.3d 811, 819 (8th Cir. 2011). However, “'facts must be viewed in the light
most favorable to the nonmoving party only if there is a “genuine” dispute as to those
facts.'” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S.
372, 380 (2007)).

A separate summary judgment standard does not exist for

employment discrimination cases. Torgerson v. City of Rochester, 643 F.3d 1031, 1043
(8th Cir.), cert. denied, 132 S. Ct. 513 (2011).

In the employment discrimination

context, summary judgment remains a Auseful pretrial tool to determine whether any
case, including one alleging discrimination, merits a trial.@ Id.
In response to the movant’s showing, the nonmoving party’s burden is to produce
“evidentiary materials that demonstrate the existence of a ‘genuine issue’ for trial.” Id.
“[T]he absence of an adequate response by the nonmovant, even after the moving party
has carried its initial burden of production, will not automatically entitle the movant to
entry of summary judgment.” Lawyer v. Hartford Life & Acc. Ins. Co., 100 F. Supp. 2d
1001, 1008 (W.D. Mo. 2000) (citing Celotex, 477 U.S. at 331). Instead, “the moving
6

party must show that the evidence satisfies the burden of persuasion and that the
evidence is so powerful that no reasonable jury would be free to disbelieve it.” Id. (citing
Celotex, 477 U.S. at 331). In other words, where the Court finds that “the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party”–where
there is no “'genuine issue for trial'”–summary judgment is appropriate.

Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
DISCUSSION
Despite the varied legal authority cited in Plaintiff’s Complaint, she has conceded
in her responses to Defendant’s Interrogatories that she is not seeking recovery for any
discrimination based on race or sex. (Filing No. 49-6 at 4-5.) As to her remaining claims
under the ADEA and the ADA, the Court concludes that summary judgment is
appropriate because Plaintiff fails to establish a prima facie case under either theory.
I.

Plaintiff’s Claims Under the ADEA
Associated Underwriters first claims that Plaintiff has failed to establish a prima

facie case of age discrimination under the ADEA. The purpose of the ADEA is to
Apromote employment of older persons based on their ability rather than age; to prohibit
arbitrary age discrimination in employment; [and] to help employers and workers find
ways of meeting problems arising from the impact of age on employment.@ 29 U.S.C.
'621(b). Thus, the ADEA makes it Aunlawful 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

7

such individual=s age.@ 29 U.S.C. ' 623(a)(1) (emphasis added); Schiltz v. Burlington N.
R.R., 115 F.3d 1407, 1411 (8th Cir. 1997).
AUnlike Title VII, the ADEA's text does not provide that a plaintiff may establish
discrimination by showing that age was simply a motivating factor,@ and therefore, does
not Aauthorize[ ] . . . mixed-motives age discrimination claim[s].@
Servs., Inc., 557 U.S. 167 (2009)).

Gross v. FBL Fin.

Thus, under the ADEA, an employer does not

Adiscriminate against an[ ] individual . . . because of such individual=s age,@ 29 U.S.C. '
623(a)(1) (emphasis added), unless Aage [is] the >but-for= cause of the employer's
decision.@ Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 516 (8th Cir.
2011) (citing Gross, 557 U.S. at 176). Consequently, although A[t]he employer cannot
rely on age as a proxy for an employee's remaining characteristics, such as
productivity,@ it can Afocus on those factors directly.@ Hazen Paper Co. v. Biggins, 507
U.S. 604, 611 (1993). Furthermore, there is no discrimination under the ADEA A[w]hen
the employer's decision is wholly motivated by factors other than age . . . even if the
motivating factor is correlated with age,@ at least when age is analytically distinct from
the motivating factor. Id. (emphasis in original).2
2

In Hazen Paper, the Supreme Court found that the plaintiff did not have an ADEA claim based
on allegations that the motivation behind the employer terminating his employment was that his pension
benefits would soon vest. Hazen Paper, 507 U.S. at 608-09. The Supreme Court stated:
When the employer's decision is wholly motivated by factors other than age, the problem
of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating
factor is correlated with age, as pension status typically is. Pension plans typically
provide that an employee's accrued benefits will become nonforfeitable, or Avested,@ once
the employee completes a certain number of years of service with the employer. On
average, an older employee has had more years in the work force than a younger
employee, and thus may well have accumulated more years of service with a particular
employer. Yet an employee's age is analytically distinct from his years of service. An
employee who is younger than 40, and therefore outside the class of older workers as
defined by the ADEA may have worked for a particular employer his entire career, while
an older worker may have been newly hired. Because age and years of service are

8

A>A plaintiff may establish her claim of intentional age discrimination through
either direct evidence or indirect evidence.

[W]here the plaintiff presents indirect

evidence of discrimination, the court analyzes her claim under the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973).@
Tusing, 639 F.3d at 515 (alteration in original) (quoting King v. United States, 553 F.3d
1156, 1160 (8th Cir. 2009)); see also Schiltz v. Burlington N. R.R., 115 F.3d 1407, 1411
(8th Cir. 1997) (citing Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir. 1994));
Bigelow v. Cent. States Health & Life Co., No. 4:05CV472, 2007 WL 2694494, at *6 (D.
Neb. Sept. 11, 2007) (citing McDonnell Douglas, 411 U.S. at 802, 804; Rothmeier v. Inv.
Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir. 1996)).
Under the McDonnell Douglas burden-shifting analysis, the plaintiff must first
establish a prima facie claim of discrimination. Loeb v. Best Buy Co., Inc., 537 F.3d
867, 872 (8th Cir. 2008). ATo establish a prima facie claim of age discrimination, a
plaintiff must show (1) she was at least forty years old; (2) she was terminated; (3) she
was meeting the employer's reasonable expectations at the time of the termination; and
(4) she was replaced by someone substantially younger.@ Bigelow, 2007 WL 2694494,
at *7 (citations omitted); See also Loeb, 537 F.3d at 872 (citing 29 U.S.C. ' 631(a);
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)).3 In cases such

analytically distinct, an employer can take account of one while ignoring the other, and
thus it is incorrect to say that a decision based on years of service is necessarily Aage
based.@
Id. at 611 (internal citations omitted).
3

See Loeb, 537 F.3d at 872 (citing 29 U.S.C. ' 631(a); Reeves, 530 U.S. 133, 142 (2000)):

To establish a prima facie case, [the plaintiff] must show that (1) at the time he was fired
he was over 40 (a member of the class protected by the ADEA) . . .; (2) he was otherwise

9

as this, where the Plaintiff was terminated as part of a RIF, the Plaintiff need not
establish the fourth element. Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 776
(8th Cir. 1995) (citing Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1165 (8th Cir. 1985)).
Instead, the Plaintiff “must provide some “additional showing” that age was a factor in
the termination.” Id.
AOnce the plaintiff satisfies this burden, [the] defendant must offer a legitimate,
non-discriminatory reason for the employment action.@ Barker v. Mo. Dep=t of Corr., 513
F.3d 831, 834 (8th Cir. 2008) (citing Clark v. Johanns, 460 F.3d 1064, 1067 (8th
Cir.2006)). The defendant=s Aburden is one of production, not persuasion;@ therefore,
the determination that the defendant has met its burden A>can involve no credibility
assessment.=@ Reeves, 530 U.S. at 142 (quoting St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 509(1993)). AIf the defendant satisfies its burden, . . . the burden shifts back
to the plaintiff to show that the defendant's proffered reason was pretextual.@ Bigelow,
2007 WL 2694494, at *6 (citing McDonnell Douglas, 411 U.S. at 802, 804). That is, the
plaintiff must A>prove by a preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were a pretext for
discrimination.=@

Reeves, 530 U.S. at 143 (quoting Tex. Dep=t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981)). AAlthough intermediate evidentiary burdens shift
back and forth under this framework, >[t]he ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the plaintiff remains at all times
qualified for the position that he had; (3) he was discharged by [the defendant]; and (4)
[the defendant] subsequently hired a younger person to fill his position.

10

with the plaintiff.=@ Reeves, 530 U.S. at 142 (quoting Burdine, 450 U.S. at 253); see also
Bigelow, 2007 WL 2694494, at *6 (citing McDonnell Douglas, 411 U.S. at 802, 804)
(quoting Rothmeier, 85 F.3d at 1332) (A>the plaintiff retains at all times the ultimate
burden of persuading the trier of fact that the adverse employment action was motivated
by intentional discrimination.=@).
Plaintiff agrees that her ADEA claim is governed by the McDonnell Douglas
burden shifting framework. Under that framework, Plaintiff fails to provide any evidence
that age was the but-for cause behind her termination. To prove her case, Plaintiff relies
on evidence that Defendant terminated her because her age and health were affecting
Associated Underwriters’ employee health insurance costs. Specifically, Plaintiff claims
her termination was motivated by her refusal to withdraw from the Defendant’s health
plan and apply for Medicare or Medicaid. (See Filing No. 53 at 11-12; Filing No. 49-2 at
19:-5-21:20; 22:3-24.) Plaintiff cites an email exchange between Gurbacki and Claire
Adams, an account manager with Coventry Health Care of Nebraska (“Coventry”), the
Defendant’s health insurance provider. In the email, Gurbacki stated:
Since last year we have lost our oldest and sickest employees, Jim &
Shari Devine are no longer here, Barb Treadway and Marjorie [Tramp] are
no longer here. Please let me know if this is the best we can do, what
choices we have with you as I know that Chris and Jeff Mann would like to
stay with you but we were expecting a rate decrease from the group
becoming younger and healthier not an increase.
(Filing No. 56-16 at CM/ECF p. 8-9.) Plaintiff claims that this evidence demonstrates
that a “trier of fact could conclude that the Defendant terminated the Plaintiff's
employment in order to reduce the Defendant's health insurance premium costs.” (Filing
No. 53 at 14.)

11

It is undisputed that Gurbacki’s choice of words was crude and perhaps
insensitive. Nevertheless, Plaintiff’s position undermines her ADEA claim. Plaintiff’s
“additional showing” of age discrimination relies on allegations that Defendant’s decision
to terminate her employment was motivated purely by health care costs. Although
health care costs tend to be positively correlated with age, such costs are analytically
distinct from age. See Hazen Paper, 507 U.S. at 611; see also Gross, 557 U.S. at 175
(AOur inquiry therefore must focus on the text of the ADEA to decide whether it
authorizes a mixed-motives age discrimination claim. It does not.@). As stated above,
there can be no discrimination under the ADEA A[w]hen the employer's decision is
wholly motivated by factors other than age . . . even if the motivating factor is correlated
with age,@ at least when age is analytically distinct from the motivating factor. Hazen
Paper, 507 U.S. at 611.
Plaintiff’s own evidence demonstrates that age and health care costs were
analytically distinct in this case. For example, Coventry’s response to Gurbacki’s email
shows that despite Plaintiff’s termination, Coventry was unable to lower Defendant’s
premiums. (Filing No. 56-16 at CM/ECF p. 7.) Coventry’s account manager explained
that because the 2009 RIF reduced enrollment in the Defendant’s health plan, the
premiums would increase even more. (Id.) This evidence demonstrates that factors
other than age affect health care costs. Plaintiff’s only “additional showing” of age
discrimination is that she was terminated “in order to reduce the Defendant’s health
insurance premium costs.” (Filing No. 53 at 14.) Plaintiff’s position demonstrates that
Defendant was motivated by factors other than age. Because the statute does not

12

permit mixed-motives age discrimination, Plaintiff has not met her burden under the
ADEA.
II.

Plaintiff’s Claims Under the ADA
Plaintiff asserts that Defendant violated the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12182(a), by terminating Plaintiff “in a heartless attempt to reduce
the costs of their health insurance premiums.” (Filing No. 53 at 22.) Like Plaintiff’s
ADEA claims, the Court analyzes her ADA claims under the McDonnell Douglas burden
shifting framework. Olsen v. Capital Region Med. Ctr., 713 F.3d 1149, 1153 (8th Cir.
2013). Under the ADA claim, the Plaintiff must show that: “(1) she is disabled; (2) she is
qualified to perform the essential functions of her job, with or without accommodation;
and (3) she suffered an adverse employment action under circumstances from which an
inference of unlawful discrimination could be inferred.” Id. at 1153-54 (internal marks
omitted).
It is highly doubtful that Plaintiff has demonstrated that she was disabled under
the ADA. “Disability is defined as: ‘(A) a physical or mental impairment that substantially
limits one or more major life activities of an individual, (B) a record of such an
impairment, or (C) being regarded as having such an impairment.’” St. Martin v. City of
St. Paul, 680 F.3d 1027, 1032 (8th Cir. 2012) (quoting 42 U.S.C. § 12102(1)). “When
the major life activity at issue is working, ‘the statutory phrase ‘substantially limits'
requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of
jobs.’” Id. (quoting Knutson v. Ag Processing, Inc., 394 F.3d 1047, 1051 (8th Cir.2005)).
Plaintiff claims that she is disabled under the ADA because of knee pain that
limited her ability to perform her daily tasks, and to remedy this pain, she was scheduled
13

for arthroscopic knee surgery. (Filing No. 53 at 22; Filing No. 49-2 at 30:6-33:5.) She
claims that her activity would be even more limited during her recovery period. (Filing
No. 53 at 22.) Plaintiff claims that Defendant was aware of this procedure, and
terminated her employment the day before the surgery was to take place. (Filing No. 492 at 31:2-32:23.) Other than these conclusory allegations, Plaintiff presents no evidence
that would satisfy the ADA, even under the more lenient standards of the ADA
Amendments Act of 2008 (“ADAAA”), which became effective on January 1, 2009. See
42 U.S.C. § 12102; Pub. L. No. 110-325, § 8, 122 Stat. 3553, 3559 (2008). Several
courts have concluded that knee surgeries such as the Plaintiff’s are insufficient to
establish a disability under the ADA. See Zurenda v. Cardiology Associates, P.C., 3:10CV-0882, 2012 WL 1801740 (N.D.N.Y. May 16, 2012) (concluding that a knee surgery
with a potential recovery of 6 to 12 months was insufficient to prove disability under the
ADAAA); Murray v. Svsco Corp., 1998 WL 160826, at *8 (N.D.N.Y. Apr. 2, 1998)
(holding that a knee injury requiring surgery did not have the required duration or longterm impact to qualify as a disability under the terms of the ADA). Accordingly, Plaintiff
has not presented sufficient evidence that she is disabled under the ADA.
Even if an issue of fact remained as to whether the Plaintiff is disabled under the
ADA, she has not established that her termination was motivated by her disability. The
ADA “is not a general protection of medically afflicted persons. It protects people who
are discriminated against by their employer . . . either because they are in fact disabled
or because their employer mistakenly believes them to be disabled.” Christian v. St.
Anthony Med. Ctr., Inc., 117 F.3d 1051, 1053 (7th Cir. 1997) (Posner, J.). In Christian,
the court noted that the principles of Hazen Paper would apply to claims under the ADA.
14

Thus, even if Plaintiff is disabled under the ADA, Plaintiff’s argument concedes that
Defendant terminated her to save health care costs, and not because she was disabled.
Accordingly, her ADA claim must be dismissed.
CONCLUSION
Plaintiff has not presented sufficient evidence to support her claims under the
ADEA and ADA. Plaintiff argues under both claims that she was terminated as a result
of Defendant’s attempts to reduce its health care costs. Even if this assertion is true,
Defendant did not terminate Plaintiff because of her age, nor due to any real or
perceived disability. Plaintiff has not established a prima facie case under either theory,
and her claims must be dismissed. Accordingly,
IT IS ORDERED:
1.

The Defendant’s Motion for Summary Judgment (Filing No. 46) is granted;

2.

This action is dismissed with prejudice;

3.

All pending motions in this case are denied as moot; and

4.

A separate judgment will be entered.

Dated this 17th day of June, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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