Freitag, Herbert v. Capital One Services, LLC

Filing 44

OPINION AND ORDER granting 24 Motion for Summary Judgment. The clerk of court is directed to dismiss plaintiff Herbert Freitag's claim and to close this case. Signed by District Judge Barbara B. Crabb on 6/23/2017. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - HERBERT FREITAG,
OPINION AND ORDER
Plaintiff,
15-cv-810-bbc
v.
CAPITAL ONE SERVICES, LLC,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Herbert Freitag brought this action against his former employer, defendant
Capital One Services, LLC, alleging that defendant fired him because of his age, in violation
of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634. Plaintiff contends
that he was subjected to ageist hostility from his direct supervisor, Steven Cambra, and that
this discrimination was the impetus for his termination. Defendant says that plaintiff was
fired because of poor performance, including unprofessional and disrespectful behavior
toward colleagues and subordinates.
Defendant has filed a motion for summary judgment, dkt. #24, which I am granting
because the undisputed facts demonstrate that defendant fired plaintiff because senior
decision makers concluded from several employee complaints and inquiries by the human
resources department that his performance and behavior warranted dismissal.

The

undisputed record would not permit a rational factfinder to conclude that plaintiff’s age was

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the reason or the “but-for” cause of his termination. Accordingly, defendant is entitled to
judgment as a matter of law.
From the parties’ proposed findings of fact and the record, I find that the following
facts are not subject to genuine dispute, except where expressly indicated otherwise.

UNDISPUTED FACTS
A. Plaintiff’s Employment History with Defendant
Plaintiff Herbert Freitag began his employment with defendant Capital One Services,
LLC, on May 1, 2012, when Capital One acquired a credit card partnership business unit
from HSBC, where plaintiff had been employed as a vice president of sales and client
development since 2005. Starting in May 2012, when plaintiff was 62 years old, his job title
at Capital One was senior manager in client development. Of the roughly two dozen senior
managers in Capital One’s credit card division, plaintiff was the oldest and the others were
mostly in their 30s and 40s. Plaintiff’s boss and direct supervisor at Capital One was
director of client development Steven Cambra, who had been supervising plaintiff at HSBC
since 2007. Cambra was in his 40s during the time he was managing plaintiff.
At Capital One, plaintiff continued working on the Menards client account, providing
credit card relationship services to Menards home improvement stores. His primary office
space was located at the Menards store in Eau Claire, Wisconsin.

One of plaintiff’s

assignments at Capital One was to manage a team of approximately 8 to 10 regional sales
associates for the Menards account, who all reported to him. Some of these associates,

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including Linda Alexander and Scott Milsteadt, found plaintiff to be an excellent manager
and a fair boss who acted professionally at all times that they personally worked together.
Others, as discussed below, complained of problems they experienced while working under
him. Plaintiff also submitted evidence that he had received positive peer reviews from
several other colleagues, and that he had received generally positive performance evaluations
from Cambra from 2009 to 2012.
At times, Cambra has inquired, joked or made derogatory comments about plaintiff’s
older age. (Plaintiff alleges that this occurred frequently, both before and after May 2012,
including at monthly meetings with the Menards management team and around other HSBC
and Capital One staff. Plaintiff says, for example, that at various times Cambra called him
“grandpa,” “gray hair,” “silver hair,” “old man” and asked him “did you have your Geritol
today?” Defendant denies that Cambra made these comments.) Cambra admitted asking
plaintiff on at least one occasion how old he was, when he planned on retiring and also if he
was “having a senior moment.” Dft.’s Response to Plt.’s PFOF, Dkt. #39, ¶¶ 55-71.
In January 2013, plaintiff and Cambra decided to create two mid-management
positions beneath plaintiff and to promote two regional sales associates to fill them. They
selected and promoted Terence Able (who was then 62 years old) and Beth Johnson (who
was in her mid-40s) to fill the positions, in which they would each manage half of the other
regional sales associates.

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B. Dyck Incident and Plaintiff’s Performance Improvement Plan
Beginning early in 2013, problems arose with a sales associate on plaintiff’s team,
Ryan Dyck, who was caught by plaintiff allegedly using his company credit card for
unauthorized personal purchases.

When these purchases continued after Dyck was

reprimanded, plaintiff reported it to his superiors, and Dyck was placed on medical leave.
Dyck also reportedly brought firearms, alleged illegal drug paraphernalia and other dangerous
or inappropriate items to his Capital One office in the Menards facility. A corporate security
officer was assigned to investigate the situation and a consultant from the human resources
team, Julie Traff, was also assigned to provide plaintiff assistance and recommendations for
handling Dyck’s employment situation going forward. Ultimately, after Traff consulted with
corporate security, Cambra and her superiors in HR, Dyck was recommended for
termination.
While Dyck was on medical leave, he contacted the human resources department to
complain about the way plaintiff had treated him. Dyck was a military veteran who had told
plaintiff and others at Capital One that he was suffering from post-traumatic stress disorder
and related health and family problems. Among other things, Dyck complained that plaintiff
had been rude and insensitive to him, had used profanity and had questioned him about his
medical condition and treatment. Dyck also alleged that plaintiff had told him that he could
go out and hire someone else “who doesn’t have a fucked-up mind.” A separate human
resources consultant, Sandi Frey, was assigned to investigate Dyck’s complaints regarding
plaintiff’s allegedly inappropriate behavior. During this investigation, Traff contacted Frey

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to inform her that during Traff’s review of Dyck’s alleged misconduct, plaintiff was
uncooperative and difficult to work with, had behaved unprofessionally and had difficulty
managing his reactions and emotions. On March 25, 2013, Frey “coached” plaintiff with
respect to these problems, emphasizing the important of professionalism and reiterating the
company’s expectations of him.
Frey reported the results of her investigation to her managers, including senior human
resources director Sarah Mankowski, who reviewed the information alongside plaintiff’s
2012 performance review. Plaintiff’s 2012 performance review assigned him a rating of
“very strong” on “results,” but his overall rating was only “strong,” because of an
“inconsistent” grade on his communications and teamwork competencies. (The performance
evaluation graded employees on individual competencies and overall ratings on a grading
scale from “inconsistent,” to “strong,” to “very strong,” to “exceptional.”) Relying on the
feedback from Frey’s investigation, including the input from Traff, and the issues previously
identified in plaintiff’s 2012 performance review, Mankowski recommended placing plaintiff
on a performance improvement plan. (A performance improvement plan is a written
documentation of a performance issue that outlines a problem, the company’s expectations
for addressing it and sets a formal process and timeline to give the employee an opportunity
to improve.)
Cambra agreed with Mankowski’s recommendation and issued a performance
improvement plan for plaintiff on May 3, 2013. In the written plan, Cambra notified
plaintiff that “his performance does not meet expectations,” and that he would have 60 days

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to demonstrate improvement, or his employment could be terminated. The “plan due date”
was recorded as July 12, 2013. On May 6, 2013, Cambra sent plaintiff an email about his
performance improvement plan.

Cambra wrote: “You haven’t had many issues with

competencies in the past therefore I don’t expect you to not get through a 60 day period. So
yes, I think it’s a blip and something you can overcome with a little effort on approach.”

C. Keaton Complaint
Sometime between May 6 and May 8, 2013, Mankowski learned of a complaint by
an employee regarding Cambra’s behavior and use of profanity. Mankowski assigned
RoseAnn Golden to investigate this complaint and concerns about the work environment
under Cambra. Golden spoke with three female employees including Tiffany Keaton, a
member of the marketing team, who relayed several complaints about unprofessional and
disrespectful behavior.

First, Keaton alleged that Cambra approached her and other

marketing team members who were watching a video at a Capital One event and asked
whether they were “making another adult video.” Second, Keaton alleged that Cambra had
inappropriately ordered a round of shots called “used condoms” for colleagues at a bar in Eau
Claire, although this took place in April 2012 before the business unit was sold from HSBC
to Capital One. Third, Keaton alleged that on one occasion plaintiff had stroked her knee
inappropriately, and that she had reported this to Cambra, but Cambra simply responded,
“You can’t teach a dog new tricks.” After reviewing Golden’s report from her investigation,
Mankowski recommended that Cambra undergo “coaching” but did not recommend an

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official performance improvement plan because Cambra had no preexisting record of similar
problems, either on his 2012 performance review or otherwise. Mankowski met with
Cambra on May 16, 2013, to coach him regarding his use of profane language and the
importance of setting a professional tone and maintaining an appropriate team work
environment. No action was taken with respect to plaintiff and the inappropriate touching
Keaton had alleged.

D. Olson and Millsap Complaints
On June 28, 2013, an anonymous caller reported to Capital One’s ethics hotline two
other incidents in which plaintiff had allegedly behaved unprofessionally or inappropriately
toward two other regional sales associates. Frey was again assigned to investigate these
allegations, and she spoke with plaintiff, Abell and the two targets of plaintiff’s alleged
behavior, Patricia Olson and Austin Millsap.
Olson reported to Frey that at a Menards store opening event on June 24, 2013,
plaintiff had followed her to the restroom and then aggressively confronted her when she
came out. Olson said that plaintiff told her “I am getting fucking complaints about you,”
and demanded to know “why the hell are you not at your post?” When Olson began crying,
she alleged that plaintiff asked her, “Are you going to stand there and bawl or are you going
to get back to work?” Abell also told Frey separately that he had seen Olson crying at the
event and that she had told him this same story soon after the confrontation with plaintiff,
although he did not witness the confrontation itself.

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Millsap told Frey about two incidents. First, at an evening work event in April 2013,
Millsap alleged that plaintiff grabbed Millsap’s arm in front of a group of people, pulled him
aside and told him that he was not in the mood for his “shit,” after Millsap declined
plaintiff’s invitation to dinner because he was not feeling well. Second, Millsap alleged that
when he informed plaintiff in December 2012 that he would be taking paternity leave,
plaintiff said that he would have to look into the rules on that issue. When Millap offered
to get a copy of the rules from the human resources department, plaintiff responded that
“there are written rules and unwritten rules.”
More generally, Millsap told Frey that plaintiff managed by intimidation and
negatively influenced the morale of the entire sales team. Both Millsap and Olson compared
plaintiff to an “abusive spouse” in the way he dealt with colleagues and subordinates. Frey
also interviewed plaintiff, who acknowledged minor confrontations with Olson and Millsap,
but denied most of the specific statements in their accounts and provided his own side of the
story with counter-allegations. Frey reported the results of her investigation back to Golden
and Mankowski

E. Conclusion of Performance Improvement Plan and Plaintiff’s Termination
On or about July 6, 2013, a few days before plaintiff’s performance improvement plan
“due date,” Cambra told plaintiff in a phone call that plaintiff had successfully completed
the plan. Also on July 6, Cambra made written comments on plaintiff’s plan documentation,
stating that plaintiff “has worked diligently to improve his communication competency gaps.

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I have not received any complaints from anyone since this PIP was created and have even
received some positive comments about how good he has been to work with.” Dkt. #39, ¶¶
216-17. Cambra also told Mankowski that plaintiff was making progress on his performance
improvement plan and had been responsive to feedback.
Mankowski reviewed the findings of Frey’s investigation of the most recent
complaints and discussed them with Golden. They discussed whether plaintiff was ever
going to change his behavior, and whether the repeated complaints against plaintiff were
putting the company at risk. Frey never had a problem dealing with plaintiff personally, and
her perspective was that plaintiff generally wanted to do the right thing, but it never seemed
to come out the right way. Frey communicated this during a phone conversation with
Mankowski and Golden.

After reviewing the investigation results, performance

improvement plan and prior performance review, Mankowski made a recommendation that
plaintiff be terminated.
Mankowski relayed this recommendation to Cambra in an email dated July 22, 2013.
Cambra responded: “Am I reading this correctly that the human resource recommendation
that we terminate [plaintiff]?” Dkt. # 34-2, at 4. Mankowski also recommended plaintiff’s
termination to Bryan Powell, vice president of the Menards account, and Rick Elliot, senior
vice president of partnerships. (Mankowski testified that she emailed her termination
recommendation to Powell and Elliot before emailing it to Cambra on July 22, and that she
did so both because Cambra was in the process of being transferred to a different account
and because she had doubts about his judgment with respect to plaintiff. Plaintiff disputes

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that account and timeline, noting a conspicuous lack of email documentation to corroborate
it.) Powell knew that plaintiff had been on a performance improvement plan, and he agreed
with Mankowski’s recommendation to terminate plaintiff. Powell had no independent basis
for the decision to terminate at that time; he relied on Mankowski’s recommendation. Elliot
received the same recommendation from Mankowski and another member of the human
resources department. The information and feedback he had received regarding plaintiff and
Mankowski’s recommendation led him to believe that termination would be the best course
of action. Neither Powell nor Elliot sought any input or recommendation from Cambra.
Powell then delivered his and Elliot’s concurring recommendation to Cambra.
(Elliot and Mankowski both testified that Elliot was the ultimate decision maker
regarding plaintiff’s termination, but plaintiff disputes that, citing later statements by
defendant in an administrative proceeding and testimony by Cambra suggesting that Cambra
made the decision, or at least approved it. The deposition testimony and other evidence do
not make it entirely clear whether Powell presented the “recommendation” to Cambra for
his approval, whether Cambra actually possessed the authority and discretion to follow or
not follow the recommendation from his superiors or whether it was a final decision that was
merely handed down for Cambra to relay in his role as plaintiff’s supervisor.)
On August 9, 2013, Cambra and Mankowski together delivered the termination
decision to plaintiff in person in a conversation that lasted between ten minutes and one
hour. At that meeting, Cambra told plaintiff that he was being terminated, using a script
prepared and provided by human resources for that purpose.

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Mankowski reviewed

defendant’s severance offer and went over other documentation with plaintiff.
After plaintiff’s termination, Anne Hofer took over some of his responsibilities and
Abell and Johnson (the regional sales associates who had previously been promoted to midmanagement positions) took over others. Hofer had learned in March 2013 that she would
be taking over Cambra’s role as director of client development for the Menards account, as
Cambra was preparing to move into a new job. Hofer came from another Capital One client
account, and she had already begun preparing to assume Cambra’s role as director when
plaintiff was fired, although she did not fully take over until September 2013. Hofer was
informed by Powell that plaintiff was being terminated shortly before it happened. She
played no role in the decision to fire plaintiff. Hofer was approximately 48 years old in
2013.
On June 4, 2014, plaintiff filed an age discrimination complaint with the Wisconsin
Department of Workforce Development, Equal Rights Division.

On July 11, 2014,

defendant filed a position statement in response, which was prepared by Capital One senior
counsel, Dana Dews Gates. In that position statement, appearing twice on the same page
is the assertion that “Cambra made the decision to terminate” plaintiff. Dkt. #39, ¶¶ 23536. Cambra, Mankowski and Powell lacked any knowledge of Dana Dews Gates and never
provided any input into the statement she included in the position statement. Plaintiff filed
this federal action on December 18, 2015.

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OPINION
Defendant has moved for summary judgment, contending that plaintiff has failed to
adduce evidence sufficient to support his age discrimination claim. Summary judgment is
appropriate if the moving party “shows that 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).
“Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In considering defendant’s motion for summary judgment, I
must credit plaintiff’s evidence and draw all reasonable inferences in his favor. Id. at 255.
In opposing defendant’s motion, plaintiff “does not bear the burden of proving his case,” but
to defeat a properly supported motion for summary judgment he must adduce “evidence that
can be put in an admissible form at trial, and that, if believed by the factfinder, could
support judgment in his favor.” Marr v. Bank of America, N.A., 662 F.3d 963, 966 (7th Cir.
2011).

A. Legal Standard for Age Discrimination Claim
The Age Discrimination in Employment Act (ADEA) provides in relevant part that
“[i]t shall be unlawful for an employer . . . to discharge any individual or otherwise
discriminate against any individual . . . because of such individual’s age.” 29 U.S.C. §
623(a)(1).

The Supreme Court has held that “the ordinary meaning of the ADEA’s

requirement that an employer took adverse action ‘because of’ age is that age was the

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‘reason’ that the employer decided to act.” Gross v. FBL Financial Services, Inc., 557 U.S.
167, 176 (2009). “It follows, then, that under § 623(a)(1), the plaintiff . . . must prove by
a preponderance of the evidence (which may be direct or circumstantial), that age was the
‘but-for’ cause of the challenged employer decision.” Id. at 177-78. The only employer
decision that plaintiff challenges as discriminatory is his termination, so the question
presented is whether plaintiff has put forth enough evidence to allow a reasonable factfinder
to conclude that plaintiff’s age was the “but-for” cause of his termination or, in other words,
that plaintiff would not have been fired but for his age.
As plaintiff observes, the Court of Appeals for the Seventh Circuit has made the point
that there is no meaningful legal distinction between claims sought to be proven by “direct”
rather than “circumstantial” evidence when it comes to evaluating employment
discrimination claims of this kind. The standard on summary judgment is simply whether
the entire body of evidence would permit a reasonable factfinder to conclude that the
plaintiff’s age (or other protected status) caused him to be discharged (or suffer some other
adverse action). Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016)
(“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.

Evidence is evidence.

Relevant evidence must be considered and

irrelevant evidence disregarded, but no evidence should be treated differently from other
evidence because it can be labeled ‘direct’ or ‘indirect.’”).
As discussed below, plaintiff presents his claim within the burden-shifting framework

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set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Although I will evaluate plaintiff’s contentions in the form in which he presents
them, I note that that the interpretive framework does not displace or alter the basic
underlying legal standard laid out above, as the court of appeals recently reiterated:
As we have explained, both before and after Ortiz, McDonnell Douglas is a
means of organizing, presenting, and assessing circumstantial evidence in
frequently recurring factual patterns found in discrimination cases. See, e.g.,
Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016)
(observing that a “prima facie case in Title VII litigation . . . refers to a common,
but not exclusive, method of establishing a triable issue of intentional
discrimination” (emphasis added) (internal quotation marks omitted));
Morgan v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013) (explaining that
“the original purpose of McDonnell Douglas . . . was to outline a series of
steps that, if satisfied, would support a plaintiff's right to reach a trier of
fact”). As Ortiz and our other case law make clear, however, McDonnell
Douglas is not the only way to assess circumstantial evidence of
discrimination. In adjudicating a summary judgment motion, the question
remains: has the non-moving party produced sufficient evidence to support a
jury verdict of intentional discrimination?
David v. Board of Trustees of Community College District No. 508, 846 F.3d 216, 224 (7th
Cir. 2017). Thus, however the claim is presented, the core legal inquiry remains the same
and the operative question still boils down to whether plaintiff has adduced sufficient
evidence to allow a reasonable factfinder to conclude that defendant fired plaintiff because
of his age, and that plaintiff’s age was the but-for cause of his discharge.

B. Burden-Shifting Analysis
Plaintiff contends that his evidence supports an age discrimination claim under the
McDonnell Douglas framework, in which the plaintiff has the initial burden of establishing

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that (1) he is a member of a protected class; (2) he met his employer’s legitimate job
expectations; (3) he suffered an adverse employment action; and (4) similarly situated
employees outside the protected class received more favorable treatment.

Keeton v.

Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012) (citing McDonnell Douglas, 411 U.S.
792). If the plaintiff satisfies his burden to establish a prima facie case for discrimination,
“then the employer must articulate a legitimate, nondiscriminatory reason for the adverse
employment action, at which point the burden shifts back to the plaintiff to submit evidence
that the employer's explanation is pretextual.” David, 846 F.3d at 225 (quoting Andrews
v. CBOCS West, Inc., 743 F.3d 230, 234 (7th Cir. 2014), overruled on other gds. by Ortiz,
834 F.3d at 765).
As plaintiff notes, these inquiries overlap in many cases. I agree that it makes sense
to “skip the analysis of . . . plaintiff’s prima facie case and proceed directly to the evaluation
of pretext if the defendant offers a nondiscriminatory explanation for its employment
decision.” Adelman-Reyes v. Saint Xavier University, 500 F.3d 662, 665–66 (7th Cir. 2007)
(citing Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998)). Accordingly, I will
look first to defendant’s stated rationale for the termination and the evidence supporting it.

1. Legitimate, nondiscriminatory reasons for termination
Defendant asserts that plaintiff was fired because his performance was poor, and he
did not cooperate or communicate well with colleagues. Moreover, his behavior toward
subordinates was unprofessional and disrespectful. The record is replete with evidence that

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in the months leading up to August 2013, defendant received several consecutive complaints
or reports about plaintiff with allegations illustrating these problems. These included the
Dyck complaint; the negative report from Traff about her investigation of Dyck’s
misconduct; the prior review of plaintiff’s teamwork and communication deficiencies; the
performance improvement plan; the Keaton complaint; and the anonymous ethics hotline
call that prompted the Olson and Millsap complaints.

The record demonstrates that

defendant attempted to address these problems and incidents with performance evaluation
and improvement processes, coaching, investigations by human resources personnel and
ultimately termination. Thus, I conclude that defendant has more than adequately met its
burden to provide a legitimate, non-discriminatory reason for firing plaintiff. The crucial
question in this case is how that rationale stands up to plaintiff’s contention that it was not
the real reason defendant terminated him.

2. Pretext
Plaintiff contends that the reasons offered by defendant for his termination are mere
pretext for discrimination, and that he was really fired because of his age. He has the burden
of supporting this contention with evidence that could be believed by a factfinder. David,
846 F.3d at 225.

“To establish pretext, [plaintiff] must identify such weaknesses,

implausibilities, inconsistencies, or contradictions in [defendant’s] proffered reasons that a
reasonable person could find them unworthy of credence and hence infer that [defendant]
did not act for the asserted non-discriminatory reasons.” Boumehdi v. Plastag Holdings,

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LLC, 489 F.3d 781, 791–92 (7th Cir. 2007) (citing Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000)). However, if defendant sincerely believed the reasons it
gave for the termination, plaintiff’s case fails “even if the reasons were foolish, trivial, or
baseless.” Id. See also McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373
(7th Cir. 1992) (“[T]he issue of pretext does not address the correctness or desirability of
reasons offered for employment decisions. Rather, it addresses the issue of whether the
employer honestly believes in the reasons it offers.”)
Plaintiff attempts to show pretext by arguing that defendant’s proffered reasons for
the termination (and associated details) are inconsistent, contradictory or untrue.
Emphasizing defendant’s position statement to the Equal Rights Division (which defendant
later sought to correct), plaintiff argues that defendant has been inconsistent as to who
ultimately made the termination decision. There appears to be a genuine dispute, or at least
a lack of clarity, about whether it was Cambra, Elliot, Powell, Mankowski or some
combination of those individuals, who ultimately had the authority and discretion to make
the decision to terminate plaintiff’s employment. I am not persuaded by defendant’s
arguments that the Equal Rights Division position statement is inadmissible and cannot be
considered, but I also do not give it much evidentiary weight in these circumstances. E.g.
McCoy, 957 F.2d at 373 (“[T]his court is reluctant to give substantial weight to a position
taken in adversary proceedings before the Department [of Human Services addressing
administrative complaint for age-based demotion]. Myriad factors undoubtedly influence
the positions taken in such a forum.”). This is especially true where the position statement

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was drafted by a corporate counsel who apparently did not speak to the people involved in
the termination. Some of the assertions in that statement are taken out of context and have
since been amended or corrected, and the testimony of some key witnesses casts doubt on
the reliability of the statement. More important, this dispute or lack of clarity as to which
individual or individuals made the final decision has very little relevance in these
circumstances, because it does not directly speak to the question whether the rationale
defendant gave for firing plaintiff was a sham or a pretext for discrimination.
Plaintiff also attacks the reasons for the termination more directly. He argues that
Mankowski’s, Powell’s, Frey’s and others’ explanations of the termination rationale are
inconsistent. But plaintiff’s criticism is that different witnesses describing that rationale at
different times variously emphasized his poor communication or “people skills,” his alleged
behavior in particular incidents or complaints, his failure to change or improve his
performance after being placed on the improvement plan or the human resources
department’s recommendation to terminate him. These are all manifestations of the same
overall pattern of alleged unprofessional conduct that defendant asserts was at the root of
defendant’s concerns and its ultimate decision to terminate plaintiff.

The differing

explanations merely indicate differing points of emphasis. None of the examples plaintiff
highlights are contradictory, so they do not indicate pretext.

O’Connor v. DePaul

University, 123 F.3d 665, 670-71 (7th Cir. 1997).
Similarly, plaintiff’s attacks on the way defendant evaluated his performance,
allegedly failed to properly follow its own policies or procedures and the way it investigated

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the complaints about plaintiff’s alleged misconduct, get him nowhere unless he can show
that these things were not done in good faith. Ransom v. CSC Consulting, Inc., 217 F.3d
467, 471 (7th Cir. 2000). Incomplete or inadequate investigation into a complaint of
misconduct is not an indication of pretext, as it is not “the court’s concern that an employer
may be wrong about its employee’s performance, or be too hard on its employee. Rather,
the only question is whether the employer’s proffered reason was pretextual, meaning that
it was a lie.” Ineichen v. Ameritech, 410 F.3d 956, 961 (7th Cir. 2005) (quoting Ransom,
217 F.3d at 471).

See also O’Connor, 123 F.3d at 670-71 (“DePaul’s response to

O’Connor’s conduct may well have been extreme or unwarranted, and according to
O’Connor, it may even have violated DePaul’s own personnel guidelines. But none of that
is determinative here. For purposes of the ADEA, we may not be concerned with whether
the decision was right or wrong, fair or unfair, well-considered or precipitous. We must look
only at whether the reason was discriminatory or, in the pretext analysis, whether it actually
did underlie the plaintiff’s termination.”). In any event, plaintiff does not actually show that
defendant’s investigation or evaluation of him violated its own policies or procedures, and
he certainly does not show that defendant’s investigation was undertaken in an attempt to
create a pretext for discrimination. Thus, in the absence of any evidence to call into question
the legitimacy of the investigations or the good faith of defendant’s attempts to address the
problems raised, I must reject plaintiff’s arguments that the investigations were not
sufficiently fair or thorough or that they came to incorrect or misguided conclusions.
Naturally, plaintiff places great emphasis on Cambra’s allegedly derogatory, belittling

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comments about plaintiff’s age. For purposes of summary judgment, I must accept plaintiff’s
version of what Cambra said to or about him, even though Cambra sharply disputes that
version. As noted above, the parties also dispute who was the “ultimate” decision maker in
plaintiff’s termination, but for purposes of summary judgment, plaintiff has adduced enough
evidence to show that Cambra was at least a part of the decision making process. Of course,
Cambra was also plaintiff’s direct supervisor, as well as the only person who, according to
plaintiff, made ageist remarks. Plaintiff maintains that Cambra had a demonstrated animus
against plaintiff because of his age, and this must have infected the decision making process
and the ultimate decision to terminate.
Defendant minimizes Cambra’s comments as mere irrelevant “stray remarks,” but
plaintiff has submitted evidence from which a factfinder could easily infer that the remarks
were more than that. Indeed, plaintiff says that some of these derogatory remarks from
Cambra were repeated, even regular, insults targeting him because of his age. He maintains
that they were stronger and more sustained than the kinds of “ambiguous or isolated
comments” that the court of appeals has sometimes dismissed as a possible indication of
discrimination. Hobgood v. Illinois Gaming Board, 731 F.3d 635, 644 (7th Cir. 2013)
(collecting cases). The court has emphasized that such comments must not be evaluated in
isolation, but in the context of all of the other evidence in the record. Id.; see also Prochaska
v. Menard, Inc., 829 F. Supp. 2d 710, 726 (W.D. Wis. 2011).
The problem with plaintiff’s claim is that he has adduced no evidence suggesting that
defendant’s decision to terminate plaintiff was affected by any bias or ill will Cambra may

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have harbored toward him. Plaintiff has not alleged that anyone other than Cambra ever
said or did anything suggesting ageist animus against him or that any of the other decision
makers had any discriminatory motive for their actions or recommendations. Most of
Cambra’s comments that plaintiff describes as “an ongoing campaign of harassment,” dkt.
#37 at 20, occurred significantly earlier than any contemplated employment action and had
no demonstrated connection with the termination decision. Plaintiff focuses misleadingly
on one comment by Cambra that “You can’t teach a dog new tricks,” repeatedly suggesting
that it was evidence that Cambra believed plaintiff could not keep up with his
responsibilities because of his age. However, the undisputed evidence shows that the
comment was made in an entirely different context: in Cambra’s response to Keaton’s
complaint that plaintiff had stroked her knee inappropriately, which Cambra allegedly did
nothing to address. Given the true context of that statement, it is a curiously unhelpful one
for plaintiff to highlight. If anything, the comment suggests that on that occasion Cambra
treated plaintiff more favorably because of his age.
Regardless what Cambra may have said, it remains the case that “fundamentally the
plaintiff must connect the circumstantial evidence to the employment action such that a
reasonable juror could infer the employer acted for discriminatory reasons.” Fleishman v.
Continental Casualty Co., 698 F.3d 598, 603 (7th Cir. 2012) (citing Rhodes v. Illinois
Department of Transportation, 359 F.3d 498, 504 (7th Cir. 2004)). All evidence of the
decision making process involving Cambra, Elliot, Powell, Mankowski and others in human
resources suggests that the only topics discussed regarding plaintiff’s potential termination

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had to do with his performance and the concerns about his conduct, as already outlined at
length. That includes the discussion among Mankowski, Frey and Golden about whether
they believed plaintiff was going to change or whether they could expect continued behavior
of the kind that led to complaints. In the context of this decision making process, the
undisputed evidence shows that Cambra himself was the only one who thought plaintiff’s
performance had improved, and that he was surprised when he learned that Mankowski and
her department were recommending plaintiff’s termination. Indeed, the evidence actually
suggests that Cambra was plaintiff’s strongest advocate with respect to his performance
improvement plan. This is far from what one would expect if Cambra’s age bias or animus
toward plaintiff were really influencing the decision making process. Plaintiff fails to address
this and other major inconsistencies in his claim that discrimination drove defendant’s
decision to fire him.
Plaintiff has not presented any evidence from which a rational factfinder could
conclude that defendant’s investigations into plaintiff’s alleged misconduct or the
performance evaluation processes were a sham, a manifestation of bad faith or a false reason
for firing plaintiff. Plaintiff cannot demonstrate pretext, and cannot defeat defendant’s
motion for summary judgment on that basis. Ineichen, 410 F.3d at 961.

C. The Evidence Would Not Permit a Reasonable Factfinder to Infer that
Plaintiff Was Terminated Because of His Age
Because plaintiff cannot demonstrate that defendant’s proffered reason for firing him

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was pretextual, he cannot satisfy the McDonnell Douglas test. Thus, I need not evaluate
whether plaintiff’s evidence presents a prima facie case under that framework. As noted
earlier in the opinion, the McDonnell Douglas framework is not the exclusive way to support
a discrimination claim, David, 846 F.3d at 224, and although plaintiff primarily emphasizes
that burden-shifting framework, some of the evidence and arguments reviewed above do not
fit neatly within it. Thus, for the purpose of completeness, I will evaluate the totality of
plaintiff’s evidence under the relevant ultimate inquiry. Id. (“In adjudicating a summary
judgment motion, the question remains: has the non-moving party produced sufficient
evidence to support a jury verdict of intentional discrimination?”).
Plaintiff was fired by his supervisor (Cambra) and the human resources director
(Mankowski), on the concurring recommendations of two higher-ranking executives (Powell
and Elliot), who in turn relied on the human resources department’s investigations and
recommendation. Human resources personnel discussed whether plaintiff was ever going to
change after repeated allegations and reports of his unprofessional and disrespectful behavior
surfaced over a period of several months. The evidence shows that Cambra had made
inappropriate jokes and insulting remarks about plaintiff’s age in the past, but that when
plaintiff was in trouble with HR because of other employees’ complaints against him,
Cambra stated that he believed plaintiff’s performance had improved and that he had
successfully completed the plan. Cambra even evinced surprise when Mankowski told him
that she was recommending plaintiff’s termination after her department had independently
investigated the complaints and alleged incidents.

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This evidence does not support a finding that intentional discrimination by Cambra
or by anyone else was the but-for cause of plaintiff’s discharge. The evidence would not
permit a reasonable factfinder to conclude that plaintiff was terminated because of his age.
Therefore, defendant’s motion for summary judgment will be granted.

ORDER
IT IS ORDERED that
1. Defendant Capital One Services, LLC’s motion for summary judgment, dkt. #24,
is GRANTED.
2. The clerk of court is directed to dismiss plaintiff Herbert Freitag’s claim and to
close this case.
Entered this 23rd day of June, 2017.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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