Opinion
CAUSE NO. IP 99-1756-C H/G.
August 6, 2001
ENTRY ON DEFENDANT'S SUMMARY JUDGMENT MOTION
Plaintiff Ann Ducharme has sued her former employer, defendant Hall Signs, Inc., for age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. Ducharme alleges that Hall Signs discharged her because of her age on August 26, 1998. Ducharme was 48 at the time and had worked at Hall Signs for about eight years in customer service and in sales. Hall Signs asserts that it terminated Ducharme for several performance problems, including an inability to get along with coworkers.
Hall Signs has moved for summary judgment on Ducharme's ADEA claim. Alternatively, Hall Signs asks the court to rule as a matter of law that after-acquired evidence of Ducharme's alleged misappropriation of confidential company documents limits any damages to which Ducharme otherwise might be entitled. As explained below, the court grants Hall Signs' summary judgment motion on the merits of Ducharme's ADEA claim. Ducharme has not come forward with evidence to establish a prima facie case of age discrimination. In addition, she has not produced evidence that would permit a reasonable jury to conclude that Hall Signs' stated reasons for her discharge were pretexts for age discrimination.
I. Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility or about whether a reasonable inference should be drawn from circumstantial evidence of a person's intentions. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998).
On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact Fed.R.Civ. p. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the existence of "some alleged factual dispute between the parties," or "some metaphysical doubt" does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). Rather, the proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).
Although intent and credibility are critical issues in employment discrimination cases, there is no special rule of civil procedure that applies only to them. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In an employment discrimination case, as in any case, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact.
II. Undisputed Facts
For purposes of Hall Signs' summary judgment motion, the following facts are either undisputed or reflect the record in the light reasonably most favorable to Ducharme, the non-moving party.
A. Ducharme's Employment and Discharge
Hall Signs, Inc. manufactures and sells highway and traffic safety supplies, including signs and related products. Hall Signs is owned by Larry and Patsy Hall. Ann Ducharme began working for Hall Signs on April 12, 1990, as a customer service representative. Born on June 18, 1949, Ducharme was 40 years old when she was hired.
Initially, Ducharme was one of six or seven customer service representatives who worked under a group leader and a supervisor. In 1991, Ducharme was promoted to the position of customer service manager by a national sales and marketing manager.
In 1993, Hall Signs vice president Monty Hopkins met with all of the customer service representatives as a group. Ducharme Dep. at 92-97. During the meeting, employees raised a variety of concerns about the customer service department. Hopkins later apologized to Ducharme for letting employees have a "super gripe session" about her. Id. at 97. Around this time, Larry Hall knew that the employees under Ducharme's supervision were very unhappy with her management. Hall Aft ¶ 5.
Hall Signs removed Ducharme from the customer service manager position in early 1994. Although he cannot remember details, Hall testified that he made the decision to demote Ducharme because of her inability to manage the customer service representatives effectively and because of general unhappiness with her management in the department. Id. at ¶ ¶ 5-6.
Ducharme next became "bid manager." In this position, she did not supervise any employees. In 1995 and 1996, Ducharme assumed some additional sales and marketing duties. None of these duties involved employee supervision.
In late 1996, when Ducharme was 47 years old, Halls Signs once again made Ducharme the customer service manger. Ducharme Dep. at 109, 191-92. Sales Manager Ron Cooper and the Halls asked Ducharme to take the position because employees in the department were "freely floating in and out at will, taking long lunches, long breaks, coming in late." Ducharme Dep. at 189; Pl. Ex. B at 4. Ducharme initially resisted the promotion. Ducharme Dep. at 189-90; Hall Dep. at 145-47. According to Hall, he "acquiesced" to Cooper's desire to see Ducharme in the position. Hall Dep. at 146. In this context, Hall "educated Ron Cooper as to the difficulties that existed the first go around with Ann." Id. at 145.
The employees Ducharme supervised during her second term as customer service manager became "very upset" under her management. Ducharme Dep. at 196. Hall removed Ducharme from the position a second time after only a few months. Hall testified that one of the reasons he made this decision was that Ducharme dealt disrespectfully with employees she supervised. Hall Dep. at 168-69. Human resource manager Paige Moser told Ducharme that she was removed from the customer service manager position because she "sucked the life out of people." Ducharme Dep. at 200.
Ducharme again returned to duties that did not include employee supervision. She conducted inside sales for the Texas territory, participated in telemarketing, and worked on bids as needed. Id. at 203, 206. Ducharme remained in this position, which neither party has identified by name or department, until one month before her termination. Id. at 206. In this capacity, Ducharme supported Hall Signs' outside sales representative for Texas, Darlene Settle. Id. at 21-22. At some point near the end of Ducharme's employment, her relationship with Settle became, according to Ducharme, "extremely rocky." Id. at 21.
In August 1998, Hall met with Settle to address Hall's concerns about Settle's performance. At that meeting, Hall and Settle discussed Settle's relationship with Ducharme. Things were not going well between them. After the meeting, Settle wrote Hall a letter summarizing her problems with Ducharme. Among other things, the letter stated that Settle had expected Ducharme to work with her as a partner but that had never occurred. Settle cited as an example of Ducharme's lack of support for her the fact that Ducharme failed to enter Settle's notes into a database of customer contacts. See Hall Dep. Ex. 11. Settle suspected that Ducharme was using Settle's notes to make contacts on her own instead of promptly entering the notes into the database for Settle's future use. See id. Both Ducharme and Settle received sales commissions. To Hall, Settle's letter raised the question of whether Ducharme was omitting information from reports to make it look as if she was making sales that were made by Settle. See Hall Dep. at 149-52; see also Def. Resp. to Pl. L.R. 56.1 Statement of Additional Material Facts ¶ 70.
Ducharme also had some troubles in her relationships with some other co-workers. There were ongoing issues with Beth Sego. According to Ducharme, Sego blocked Ducharme's access to reports and would "get in your face," and Sego failed to provide support to Ducharme. Ducharme Dep. at 55-56. Ducharme also testified she did not get along with a group of employees she called the "pom pom squad," comprised of Moser, Sego and Raquel Ray. Id. at 64. Ray threatened to quit if she had to work under Ducharme's supervision. Id. at 87.
Ducharme also had some problems with plant manager Gary May, saying that he would "drag his feet" and once "jumped on" one of the sales representatives when he made a mistake. Id. at 80-81. In addition, Ducharme was displeased that the receptionist sometimes held her calls. Id. at 82-83.
In August 1998, Hall Signs held several meetings with the customer service department, including Ducharme, to discuss a new team concept. Hall Signs planned to implement a team structure for the department. Customer service representatives would back each other up. Around this time, Ducharme told Hall Signs' controller Randy Barnard that she was interested in a position outside the customer service department. Ducharme Dep. at 208-09. Barnard considered Ducharme a customer service representative at that time. Id.
In mid-August 1998, Hall Signs announced in a meeting that Tracie Erickson would be the new customer service manager under the team concept. During the meeting, Ducharme had what Hall Signs has called an "outburst," which it assumed was in response to the announcement. See Hall Dep. at 118. Ducharme admitted she might have used obscene or vulgar language. Ducharme Dep. at 226. Ducharme also admitted that she was very upset — but not because of Erickson's promotion. Id. at 225-26. Ducharme had just learned second-hand from Erickson that the receptionist had been instructed by "Jenny" to block Ducharme's calls. Id. at 224. Ducharme told Erickson and others present that she would not accept this and asked Erickson, in her new role as customer service manager, to help her with the situation. Ducharme says she described the conduct as illegal, as creating a hostile work environment, and as age discrimination. Id. at 225.
Neither party has addressed this testimony in detail, so it is not clear who "Jenny" is. Hall Signs' position statement to the Equal Employment Opportunity Commission (EEOC) identifies Jennifer Hanson as one of the company's human resources managers during Ducharme's employment. Pl. Ex. B at 1.
On or about August 21, 1998, Hall made the decision to terminate Ducharme's employment. Hall made the decision while he was in Arizona where he and his wife live part of the time. Hall testified that he made this decision based on the following several factors: (1) the issues Settle raised about Ducharme in August 1998; (2) Ducharme's "outburst" during the mid-August meeting where Erickson's promotion was announced and where Ducharme learned of the instruction to block her calls; (3) Hall's understanding from Erickson and unnamed others that several of the customer service representatives did not wish to work with Ducharme; (4) Ducharme's inquiry about a position outside the customer service department; (5) Ducharme's on-going inability to develop good working relationships; (6) Ducharme's past failings in managing subordinate employees; and (7) Ducharme's generally abrasive manner with co-workers. Hall Dep. at 116-19.
Hall Signs discharged Ducharme on August 26, 1998, when she was 48 years old. On that day, Erickson told Ducharme that the customer service department was being reorganized and that there was "no place for you." Ducharme Dep. at 240-41. As part of the reorganization, two customer service representatives would be placed in each territory. Hall Signs ran an advertisement for an "inside sales" job immediately after Ducharme's discharge. Hall July Dep. at 9-13.
Hall Signs has a policy of trying to work with employees who have performance problems. Hall Dep. at 128. However, Hall never spoke to Ducharme about any performance problems. Specifically, Hall never spoke to Ducharme about her treatment of Hall Signs employees. Hall Dep. at 168-69. He does not know if any other manager ever spoke to her about her interactions with employees. Id. In addition, Hall never told Ducharme that she needed to do anything differently in her relationship with Settle. Id. at 154-55. Hall did not investigate the issues discussed in Settle's letter. Hall Dep. at 153. Nor did he give Ducharme an opportunity to respond to the letter. Id. at 154.
In this lawsuit, Ducharme challenges Hall's credibility for several reasons including that, in spite of his statements about Ducharme's "people problems," Hall has admitted that no conflict resulted when he worked with Ducharme as part of a team. Hall Dep. at 183. In addition, Hall could not cite any specific examples of Ducharme acting disrespectfully. Id. at 169-70.
B. Alleged Age-Related Comments
In her deposition, Ducharme cited two comments as part of the factual basis for her age discrimination claim. According to Ducharme, in 1996, Patsy Hall asked Ducharme why she did not "do something" about her hair. Ducharme asked Mrs. Hall what she meant and Mrs. Hall suggested that she dye her hair and that Ducharme "look[ed] like a grandmother." Ducharme Dep. at 226-27. Ducharme told Mrs. Hall that she was proud to be a grandmother. Id.
Ducharme did not address Mrs. Hall's alleged comment in her brief.
Ducharme also alleges that in 1997, Larry Hall said the company was going "to hire younger people to take the company forward." Id. at 227, 231. The comment was made during a five-minute meeting announcing the departure of Moser, who was many years younger than Ducharme. Ducharme was shocked that Hall said that. Ducharme was the only one in the meeting with white hair. Id.
C. Hall Signs' After-Acquired Evidence
During the last several years of Ducharme's employment, she took home Hall Signs documents on a daily basis. Ducharme Dep. at 511-14. Ducharme kept these documents, originals and copies, in boxes in her dining room and garage. Id. at 502, 511-14. Ducharme has estimated that if all the documents she took were piled together, the stack would measure three to four feet high. Id. at 11-12. The documents Ducharme took included booking reports, customer lists and contact information, caller reports, customer orders, and pricing information. Id. at 508-09, 517, 522-23, 531, 534, 535.
Many of these documents were labeled "confidential." Id. at 505, 544. Hall Signs had a Confidential Information policy in its employee handbook during Ducharme's employment. Ducharme Dep. Ex. 25 at 30. The policy directed employees to keep customer and supplier information confidential, to never discuss company business with anyone outside the company, and to discuss business transactions only with those persons directly involved with the transaction. See id. The policy provided that disclosure of confidential information could result in discharge. Id. Hall testified that Hall Signs also instructs new employees that they are prohibited from taking company documents home. Hall July Dep. at 15-16.
Hall Signs learned that Ducharme had taken and retained company documents following her termination. Hall initially testified that he first learned about the documents when Ducharme brought a "tub" of them to his deposition in April 2000. Hall July Dep. at 4-6. A few minutes later, Hall testified that Hall Signs' counsel told him about the documents earlier in the litigation. Id. at 6-8. Hall Signs' Answer, which asserts an after-acquired evidence defense, was filed in December 1999.
Hall has testified that he would have terminated Ducharme's employment immediately if he had known that she was taking home and retaining company documents during her employment. Hall Aff. ¶ 11. Hall cannot identify anyone who has ever been fired for taking documents from Hall Signs. Hall July Dep. at 21. He has never had to deal with anyone taking company documents before. Id.
III. Discussion
The ADEA makes it "unlawful for an employer . . . 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). The ADEA protects employees 40 years of age and over. Id. at § 631.
Ducharme does not contend she has any direct evidence of age discrimination linked to the decision to fire her, the court analyzes her claim under the three-step pattern of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Gordon v. United Airlines, Inc., 246 F.3d 878, 885 (7th Cir. 2001); Wade v. Lerner New York, Inc., 243 F.3d 319, 322 (7th Cir. 2001); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) ("Because the parties do not dispute the issue, we shall assume, arguendo, that the McDonnell Douglas framework is fully applicable" to an ADEA claim).
Under this model, Ducharme must first establish a prima facie case of age discrimination by producing evidence that tends to show that (1) she belongs to the protected class; (2) she was performing her job satisfactorily; (3) she suffered an adverse employment action; and (4) Hall Signs either sought and hired someone who was substantially younger to replace her; treated substantially younger, similarly situated employees more favorably; or discharged Ducharme under circumstances that indicate that it was more likely than not that age was the reason for the discharge. See Gordon, 246 F.3d at 886 (describing final element as "similarly situated employees outside the protected class were treated more favorably by the defendant"); Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1090 (7th Cir. 2000) (fourth element requires showing of significantly younger replacement or "other such evidence" giving rise to an inference of age discrimination); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (recognizing that the prima facie case requires evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion; plaintiff must show discrimination in relation to a substantially younger employee, but not someone outside the protected class to raise an inference of discrimination).
The parties disagree on the proper formulation of the final element of the plaintiff's prima facie case. As discussed below, Seventh Circuit has articulated different formulations of this element. On this record, Ducharme has not offered evidence that tends to show that she can establish a prima facie case under any of them. See discussion, infra at 18-23.
The prima facie case is intended to identify circumstances in which a jury could infer that an employment decision, if not explained, was the product of illegal discrimination. See, e.g., Robin, 200 F.3d at 1088. However, if the employer can then merely articulate a legitimate, nondiscriminatory reason for its decisions, that step shifts the burden back to the plaintiff to show that the employer's stated reason is a pretext, that is, a false explanation for the decision. See id.; see Jackson v. E.J Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999).
Hall Signs agrees that Ducharme is protected by the ADEA and that she suffered an adverse employment action when she was discharged. Hall Signs contends, however, that Ducharme cannot establish the second or fourth elements of her prima facie case as a matter of law. In response, Ducharme counters that she has carried her summary judgment burden on these elements and that there is record evidence of pretext.
A. Ducharme's Prima Facie Case 1. Satisfactory Job Performance
According to Hall Signs, the performance problems that allegedly led to Ducharme's discharge prove as a matter of law that she was not living up to its legitimate expectations. Ducharme asserts that evidence of her good performance for the company is sufficient to establish this second element of his prima facie case for summary judgment purposes. Because a plaintiff's burden to establish a prima facie case in discrimination cases is not onerous, the Seventh Circuit has recognized that a plaintiff may create a material dispute about her own abilities by simply attesting that she was performing satisfactorily. See Roberts v. Separators, Inc., 172 F.3d 448, 451 (7th Cir. 1999) (assuming that plaintiff could establish this element of his ADEA claim and moving on to related pretext analysis), citing Gustovich v. AT T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992) (distinguishing between the use of such "self-serving" evidence at the prima facie case stage and at the pretext analysis); see also Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1263 n. 5 (7th Cir. 1993) ("We have long recognized that an employer's acceptance of work without express reservation is sufficient to show that the plaintiff was performing satisfactorily for the purpose of shifting the burden of proof.").
Viewed in the light reasonably most favorable to Ducharme, there is sufficient evidence of her satisfactory performance to create an issue for trial on this element. According to Ducharme, she worked at her last position at Hall Signs for about two years and did not receive any warnings about her performance. As a result of her sales efforts, Illinois and Texas tied as the second highest grossing sales territories for Hall Signs. Ducharme Dep. at 281. In addition, Hall himself testified that Ducharme had "good product knowledge and good technical skills" and was qualified to train employees. Hall Dep. at 136. Based on this record, a reasonable jury could conclude that Ducharme was performing her job satisfactorily.
2. The Fourth Element of Ducharme's Prima Facie Case
The Seventh Circuit has articulated different versions of the final element of the prima facie case. Ducharme has not carried her summary judgment burden under any of them.
Hall Signs has argued that Ducharme must come forward with evidence that it treated similarly situated, substantially younger employees more favorably than it treated her to establish the fourth element of her prima facie case for summary judgment purposes. See Def. Br. at 15, citing Fairchild v. Forma Scientific, Inc., 147 F.3d 567 (7th Cir. 1998). Ducharme contends that she may establish the fourth element by simply showing that Hall Signs sought a replacement for her. See Pl. Br. at 6, citing Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1039 (7th Cir. 1993) (stating that ADEA plaintiff may establish final element by demonstrating that the employer "sought a replacement" for him; plaintiff established prima facie case by showing he actually was replaced); Anderson v. Stauffer Chemical Co., 965 F.2d 397, 400-01 (7th Cir. 1992) (same). She contends that the formulation of the fourth element that focuses on similarly situated employees is reserved for reduction-in-force or "RIF" cases. See Pl. Br. at 5, citing Gadsby v. Norwalk Furniture Corp., 71 F.3d 1324, 1331 (7th Cir. 1995).
Although Ducharme testified that she was told that she was being discharged following a "reorganization" in the customer service department, neither party has argued that this case involves a reduction-in-force or a "mini-RIF." See Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 693 (7th Cir. 2000) (a "mini-RIF" occurs when an employee's position is eliminated but his former responsibilities are assumed by other employees; in mini-RIF cases, a plaintiff can establish the fourth element of his prima facie case by showing that his duties were absorbed by employees who were not members of the protected class); Bellaver v. Quanex, 200 F.3d 485, 494-95 (7th Cir. 2000) (same); see also Miller v. Borden, 168 F.3d 308, 313 (7th Cir. 1999) (if plaintiff's duties are "fungible" and are absorbed by other employees, plaintiff must show that he was treated less favorably than one or more substantially younger, similarly situated employees). Accordingly, the court treats this case as one involving a single discharge.
The Seventh Circuit has acknowledged that it has "employed various formulations of the fourth element" of a plaintiff's prima facie age discrimination case. See, e.g., Fairchild, 147 F.3d at 571 n. 1 (setting forth the "similarly situated" fourth element in a non-RIF termination case while citing cases using a different formulation; without deciding which formulation was appropriate in that case, the court affirmed summary judgment for the employer on pretext grounds); see also Debs v. Northeastern Illinois University, 153 F.3d 390, 395 n. 1 (7th Cir. 1998) ("This Circuit has employed various formulations of the fourth element, largely as a result of the different types of age discrimination cases that arise. Because we resolve this case on the basis of pretext and assume satisfaction of the prima facie case, we have no reason to examine the various permutations and requirements associated with the fourth and final element.") (internal quotation marks and citations omitted).
In Gadsby, the Seventh Circuit observed that it has described the following "several variations" of the fourth prima facie element in its ADEA discharge cases: (a) plaintiff must show the employer replaced him; (b) plaintiff must show the employer sought a replacement for him; (c) plaintiff must show the employer treated others outside the protected class more favorably; or (d) plaintiff must show that the discharge occurred under circumstances that gave rise to an inference of age discrimination. 71 F.3d at 1332 n. 3. Despite these stated variations, the court noted that it was unaware of any of decisions involving discharges holding that the fourth factor was satisfied upon a showing of less than actual replacement by a younger employee. Id. at 1332. The court described the third variation-regarding the more favorable treatment of younger employees — as the "less stringent" standard applicable in RIF cases. Id. at 1331-32 (plaintiffs terminated in reduction-in-force are held to less strict standard because "[t]he inference of discrimination comes from the belief that the employer selected the plaintiff for termination based on age from a group of employees who were equally qualified for termination based on criteria other than age"). The court expressly declined to hold that the so-called "RIF standard" applies in single discharge cases. Id. at 1331.
In several decisions since Gadsby, including some of its most recent published ADEA discharge cases, the Seventh Circuit has applied the "similarly situated" fourth element in non-reduction-in-force termination cases without revisiting Gadsby. See, e.g., Gordon v. United Airlines, 246 F.3d at 886; O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th Cir. 2001). In Hoffman v. Primedia Special Interest Publications, 217 F.3d 522 (7th Cir. 2000), the court combined two of the variations of the fourth element, explaining that in order to prove that substantially younger, similarly situated employees had been treated more favorably, the plaintiff had to show that he had been replaced by someone younger. Id. at 524 ("In contexts such as this, where a single employee is let go and another individual is hired instead, the fourth requirement means showing that the discharged worker was replaced with someone substantially younger."), citing Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1028 (7th Cir. 1998).
Here, in the absence of more definitive guidance from the Seventh Circuit and in light of the generally low threshold for establishing a prima facie case, see, e.g., Roberts, 172 F.3d at 451, the court has examined the summary judgment record for evidence that would support the fourth element of Ducharme's prima facie case under any of the variations acknowledged by the Seventh Circuit. The court has found none.
First, even under Ducharme's preferred formulation of the final element, her prima facie case fails as a matter of law. Ducharme asserts that Hall Signs sought a replacement for her when it ran an advertisement for an inside sales position following her discharge. As a threshold factual matter, it is not clear that the advertisement to which Ducharme refers sought a replacement for her because the record is silent on Ducharme's precise job title and duties at the time of her discharge. Randy Barnard, the company controller, considered Ducharme a customer service representative at that time. More important, however, there is no record evidence about the result of Hall Signs' recruitment efforts. As discussed above, Gadsby observed that while some cases described the final element as requiring only that an employer seek a replacement, there were no cases where a plaintiff established a prima facie case without demonstrating actual replacement by someone younger. Plaintiff has not cited any cases decided since Gadsby that had a different result, and the court is not aware of any. The mere fact that Hall Signs sought an inside sales person shortly after Ducharme's termination does not raise an inference that Hall Signs discharged her because of her age.
The record is silent on whether the inside sales position was filled and, if so, by whom. In its position statement to the EEOC, Hall Signs stated that Ducharme was not replaced. See Pl. Ex. B. According to the position statement, Hall Signs hired a customer service representative in November 1998 to replace Erickson, who was promoted to the customer service manager position in August 1998. See id. The new customer service representative was about 10 years younger than Ducharme. Id.
Second, the court considers the "similarly situated" formulation of the fourth element as stated in recent cases and as advocated by Hall Signs. Ducharme did not respond to Hall Signs' argument that Ducharme cannot establish this version of the final element as a matter of law because it fired two younger employees for performance problems around the time of Ducharme's discharge. See Def. Br. at 17. Accordingly, Ducharme's claim fails as a matter of law under this formulation.
Even under the most "permissive" formulation of the final element, Ducharme's prima facie case fails as a matter of law because she has not come forward with evidence tending to show that her discharge occurred under circumstances giving rise to an inference of age discrimination. See Gadsby, 71 F.3d at 1332 n. 3. As discussed below, Hall Signs has articulated legitimate, non-discriminatory reasons for her discharge and Ducharme has not rebutted those reasons with evidence of pretext. Nothing in the record tends to suggest that age discrimination was the real reason for Ducharme's discharge.
B. Pretext
Even if Ducharme could establish a prima facie case, her ADEA claim still fails as a matter of law because she has not produced evidence that would allow a reasonable jury to find that Hall Signs' stated legitimate, nondiscriminatory reasons for her discharge were pretexts for age discrimination. Hall Signs asserts that it terminated Ducharme's employment in August 1998 for a number of reasons that boil down to Ducharme's inability to work with co-workers, including Settle, Ducharme's outburst in a meeting shortly before her discharge, complaints that customer service representatives did not want to work with her, and her long-standing inability to manage and work with people. See Def. Br. at 18.
To survive summary judgment, Ducharme most come forward with evidence that would allow a reasonable jury to find by a preponderance of the evidence that Hall Signs' stated reasons were not merely wrong as a factual matter but were false pretexts for illegal age discrimination. See Jackson, 176 F.3d at 983; see also Wolf v. Buss (American) Inc., 77 F.3d 914, 920 (7th Cir. 1996) (if defendant offers multiple reasons for its employment decision, plaintiff must show that each is pretextual).
A pretext for discrimination "means more than an unusual act; it means something worse than a business error; `pretext' means deceit used to cover one's track's." Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 684 (2000), citing Reeves, 530 U.S. at 146-48. A plaintiff can establish pretext by showing that the defendant's proffered reasons were either lies or completely lacking in factual basis. See, e.g., Mills v. Health Care Service Corp., 171 F.3d 450, 458-59 (7th Cir. 1999) (to demonstrate pretext, plaintiff must show that the employer was "egregiously mistaken" and that its stated reason had no basis in fact); Ghosh v. Indiana Dep't of Environmental Management, 192 F.3d 1087, 1091 (7th Cir. 1999).
Ducharme is not required to present direct evidence of pretext. See Gordon, 246 F.3d at 886 (reversing summary judgment). She can establish pretext indirectly by producing evidence that Hall Signs' proffered reasons for firing her are not credible:
a plaintiff may accomplish this showing [of pretext] with evidence tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge. These formulations are simply different ways of recognizing that when the sincerity of an employer's asserted reasons for [disciplining] an employee is cast into doubt, a fact finder may reasonably infer that unlawful discrimination was the true motivation.Testerman v. EDS Technical Products Corp., 98 F.3d 297, 303 (7th Cir. 1996) (citations omitted), cited in Adreani v. First Colonial Banks Shares Corp., 154 F.3d 389, 395 (7th Cir. 1998); see also Gordon, 246 F.3d at 888-89.
If Hall Signs honestly believed its reasons for discharging Ducharme, there was no pretext. This is true even if the reasons were foolish, trivial, or mistaken. See Gordon, 246 F.3d at 889; Wade, 243 F.3d at 323 (if employer honestly believed in the non-discriminatory reason it offered, it is irrelevant whether the employer disciplined the employee for an infraction she did not commit); see also Pitasi v. Gartner Group, Inc., 184 F.3d 709, 718 (7th Cir. 1999) ("[I]t is not sufficient for the employee to show his employer fired him for incorrect or poorly considered reasons."); O'Connor v. DePaul University, 123 F.3d 665, 670 (7th Cir. 1997) ("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 plaintiffs termination."); Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 865 (7th Cir. 1997) (questioning management's judgment does not prove pretext). As the Seventh Circuit often has said, the courts do not function as a "super-personnel department" in reviewing employment decisions. See, e.g., O'Regan, 246 F.3d at 984.
Ducharme argues that she has carried her burden on pretext in several ways. First, she contends the evidence raises a fact question about whether Hall honestly believed that there were serious problems in Ducharme's relationship with Settle. Second, Ducharme argues there was no basis in fact for some of Hall Signs' stated reasons for the termination decision. Third, she claims that some of the alleged reasons for the decision were insufficient to motivate a discharge. Fourth, Ducharme asserts that Hall Signs has given different reasons for her termination over time and that the differences would allow a jury to disbelieve them. Ducharme's pretext theories fail as a matter of law. Following Ducharme's lead, the court addresses them in the context of her specific challenges to Hall Signs' reasons for her discharge. 1. Ducharme's Relationship with Settle
Ducharme's pretext arguments fail on their own and without consideration of Hall Signs' argument based on the so-called "same actor inference" based on Hall's role in supposedly both promoting Ducharme as well as firing her. The Seventh Circuit has made clear that the "same actor inference" cannot support summary judgment in favor of an employer. Johnson v. Zema Systems Corp., 170 F.3d 734, 745 (7th Cir. 1999). Similarly, the fact that Hall is a little older than Ducharme does not support summary judgment. Kadas v. MCI Systemhouse Corp., ___ F.3d ___, 2001 WL 683471, *2 (7th Cir. June 19, 2001) ("the relative ages of the terminating and terminated employee are relatively unimportant"; also noting that Johnson v. Zema Systems "emphatically rejected" the same actor inference).
Hall Signs has stated that the decision to discharge Hall was motivated in part by the issues Settle raised about Ducharme in a conversation with and subsequent letter to Hall. Ducharme argues that the fact that Hall did not investigate Settle's allegations or approach her about them casts doubt on whether Settle's allegations actually motivated Hall's decision to fire her. She contends that Hall is lying about either the issues Settle raised being a reason for firing her or about having a policy of working with employees with performance problems. Pl. Br. at 13. To raise a fact question on pretext, however, it is not enough to show that an employer did not strictly follow its own policies. See Stewart v. Henderson, 207 F.3d at 376, 378 (7th Cir. 1999) (evidence that the employer applied its own rating method poorly was not evidence that the employer's proffered reasons for the employment decisions at issue were pretextual); Kulumani, 224 F.3d at 684 (where company established criteria for managers to select employees for reduction-in-force, human resources director's "unusual" decision to override managers' selection was not evidence of pretext); O'Connor, 123 F.3d at 670 (ADEA plaintiff did not demonstrate pretext even if he was correct that employer's action violated its personnel policies); Friedel v. City of Madison, 832 F.2d 965, 973 (7th Cir. 1987) (employer's inaccurate application of policy does not provide basis for Title VII liability).
Nor is it sufficient to show that an employer should have investigated problems more diligently. See Richter, 142 F.3d at 1031 (affirming summary judgment for employer where plaintiff contended that employer should have exercised more "due diligence" to confirm whether three managers' assessment of him was accurate), citing Rand, 42 F.3d at 1145 (plaintiff cannot prove pretext by arguing that the employer should have questioned more executives before reaching a termination decision). The fact that Hall could have been more fair or thorough in considering the issues raised by Settle, does not show that Hall Signs' reliance on problems with Settle was a pretext for age discrimination.
Ducharme also suggests in passing that Settle's complaints about Ducharme were insufficient to motivate the decision to fire her. The court disagrees. According to Settle's letter, the substance of which Ducharme has not disputed, Ducharme did not adequately support Settle, the company's outside sales representative in Texas. Settle told Hall that Ducharme was not entering information into a company database promptly, which had a negative effect on Settle's ability to make contacts with customers. This is not a trivial problem in a sales-oriented company. Indeed, this is the type of performance problem that reasonably could be expected to lead to disciplinary action or termination, especially of an employee like Ducharme who previously had been demoted twice from a different position.
2. Ducharme's Conduct in the August 1998 Customer Service Department Meeting
Hall Signs has stated that the decision to discharge Ducharme also was motivated in part by her "outburst" during an August 1998 customer service department meeting. Ducharme admits that she became very upset during the meeting, but she disputes that her conduct was triggered by the announcement of Erickson as the customer service manager, as Hall Signs has asserted. She argues that if Halls Signs discharged her because it wrongly believed she reacted negatively to Erickson's promotion, then there is a fact question on pretext because this proffered reason for her termination is factually baseless.
Ducharme claims she became upset because she was told that the receptionist was instructed to hold her calls. She reacted by saying this was "illegal," created a "hostile work environment," and was "age discrimination." Ducharme Dep. at 225. In her brief, Ducharme suggests in a footnote that if Hall Signs is admitting that her "outburst" about age discrimination motivated its discharge decision, then it would be liable for retaliation under the ADEA. Pl. Br. at 16 n. 2. The court does not understand Hall Signs to have made any such admission. Besides, such a complaint about an incident that could not reasonably be viewed as an ADEA violation is not protected by the ADEA's anti-retaliation provisions. See Clark County Sch. Dist. v. Breeden, 121 S.Ct. 1508, 1510 (2001) (complaint about single incident that no reasonable person could have believed to violate Title VII did not provide basis for retaliation claim). The court dismissed Ducharme's retaliation claim without prejudice on April 20, 2000.
A stated reason for a termination decision is not factually baseless, however, simply because it might be partly wrong as a factual matter. The relevant pretext inquiry is whether the decision-maker believed the asserted facts underlying the termination decision. See Wade, 243 F.3d at 323 (where store manager made decision to discipline employee based on supervisor's report that plaintiff arrived late, the relevant inquiry was whether the decision-maker honestly believed that plaintiff was late; plaintiffs assertion that she arrived on time did not create a disputed fact question on pretext); Baron v. City of Highland Park, 195 F.3d 333, 341 (7th Cir. 1999) ("the overall correctness or desirability of the reasons proffered is not relevant to the determination of pretext"); Roberts, 172 F.3d at 453 (it is not enough for plaintiff to prove that he did not make the alleged statements which his employer thought amounted to his bad attitude-he must prove that the defendant did not honestly believe he had made them); Mills, 171 F.3d at 459 (to show pretext, plaintiff would have to produce evidence that evaluation of plaintiffs performance was dishonest, not merely mistaken); Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1304 (7th Cir. 1991) (court's responsibility is not to determine whether alleged acts occurred, but whether the employer's belief was honestly held); Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 559-560 (7th Cir. 1987) (where an employer has honestly described the motivation behind its decision, that decision is not a pretext for discrimination just because the plaintiff asserts the defendant's beliefs were inaccurate).
Ducharme has not identified any record evidence that tends to show Hall did not honestly believe both that Ducharme had an "outburst" and that it was in response to the announcement that Erickson was promoted to customer service manager. Without such evidence, Ducharme cannot raise a fact issue on pretext with respect to this reason for her termination.
3. Co-Workers' Aversion to Working with Ducharme
According to Hall Signs, Hall also based his decision to discharge Ducharme on information he received about co-workers not wanting to work with Ducharme. Hall testified that Erickson and others told him that several of the customer service representatives stated they did not wish to work with Ducharme under the new team concept announced for the department. Ducharme argues that this reason is factually baseless because Hall Signs has not produced evidence from the customer service representatives who allegedly made the statements. In addition, Ducharme argues that this reason was insufficient actually to motivate the termination decision because Hall Signs could have assigned Ducharme to an area where employees were willing to work with her.
The court disagrees with both of Ducharme's attacks on this stated reason for her termination. First, Hall Signs was not required to support its summary judgment motion with statements from the customer service representatives themselves. Statements from the customer service representatives are not hearsay when offered not to prove the truth of the matter asserted but to show either their states of mind about Ducharme or, more simply, that Hall learned of their complaints and considered them in deciding whether to fire Ducharme. Employers are not required to apply the Federal Rules of Evidence when they gather information and make decisions about employees. Ducharme has not identified any evidence that tends to cast doubt on the honesty of Hall's testimony about receiving information about employees not wanting to work with her.
Second, reports that several employees did not wish to work with Ducharme were sufficient to motivate the decision to discharge Ducharme. Hall testified about the importance of having employees who get along together: "We're a small company. We work very, very closely together. And good spirit, good attitude, good atmosphere, respect for individuals is a lot of what breeds our success in there. Ann [Ducharme] lacked those skills." Hall Dep. at 167. It is reasonable for any employer, but especially a small company, to insist that employees get along with one another. Also, contrary to Ducharme's assertion, the fact that Hall Signs did not terminate Ducharme in 1996 when employees previously were very unhappy under her management does not cast doubt on Hall Signs' motivation to discharge her in 1998 when a similar issue arose again. If anything, this evidence tends to show that Hall Signs was willing to work with Ducharme when she was 46 years old. Ducharme's theory that Halls Signs might have been able to find some employees willing to work with her does not create a fact question on pretext. The ADEA does not require employers to retain employees who have a history of not getting along well with co-workers until they have proven conclusively they cannot get along with anyone in the company.
4. Ducharme's Interest in a Position Outside of Customer Service
Hall Signs has stated that it also considered Ducharme's interest in a position outside of customer service as a factor in its decision to terminate her employment. On August 7, 1998, about three weeks before her discharge, Ducharme sent Barnard (the controller) an e-mail about a possible department change that she had discussed with former General Manager Greg Otter over the past several months. Pl. Bit. B, Ex. 10. Ducharme wrote that a new project or process manager position might be created and that Otter had said that he had spoken to Hall about recommending Ducharme for the position. At the end of the e-mail, Ducharme asked whether Hall Signs was still considering adding the new position and whether she was still being considered for it. Ducharme stated that she would like to be considered "for this position or others like it." Id.
Hall Signs has described the e-mail as a request for a "transfer." See Def. Br. at 18. Ducharme disagrees with this characterization of the e-mail and alleges that there is no factual basis for Hall Signs' assertion that Ducharme's requested a "transfer." The court disagrees. The e-mail message itself provides a factual basis for Hall Signs' stated reason. Calling the e-mail a request for a transfer may be an overstatement, or even factually wrong, but again, this is not enough to prove pretext. There is no record evidence that tends to suggest that Hall did not honestly believe that Ducharme had not intended to request a transfer by expressing interest in another position.
5. Ducharme's Relationships with Co-workers Generally
Hall Signs also identified Ducharme's inability to get along with co-workers as a reason for her discharge. Hall articulated three separate reasons for his termination decision that involve Ducharme's difficulties with co-workers. See Hall Dep. at 116-19. Hall testified that he decided to terminate Ducharme's employment in part because of (a) Ducharme's ongoing inability to develop good working relationships; (b) Ducharme's past failings in managing subordinate employees; and (c) Ducharme's generally abrasive manner with co-workers. Because all three reasons essentially address the same performance problem, the court considers them together.
Ducharme argues that Hall's testimony about this asserted reason is not credible because he could not cite specific personal examples to support his broad statements that Ducharme had conflicts with and was disrespectful to co-workers. In addition, Ducharme again complains that if Hall really believed Ducharme had such problems, he (or another manager) would have talked to her about them under the company's policy of working with employees to resolve performance problems.
As discussed above, the fact that no one spoke with Ducharme about her need to improve working relationships is not probative of pretext. It does not tend to show that Hall Signs is lying about considering Ducharme's difficulties with co-workers in making its decision to discharge her. In addition, the summary judgment record contains undisputed evidence of several examples of Ducharme's bad relationships at work. During her first term as customer service manger, employees under her supervision had a "super gripe session" about her that lasted several hours. In addition, Hall Signs removed Ducharme twice from a supervisory position. Ducharme also had an "extremely rocky" relationship with Settle. The fact that Hall did not necessarily have a bad relationship with Ducharme or personally witness Ducharme's conduct does not raise a fact question about pretext. It is not unusual for the president of a company to base employment decisions on reports about employee performance that he receives from others, nor for employees to be on their best behavior when the boss is around.
6. Whether Hall Signs' Reasons for Ducharme's Discharge Were Consistent
Ducharme also has argued that Hall Signs has given inconsistent reasons for her discharge and that these inconsistencies raise a fact question on pretext. See Pl. Br. at 13 n. 1. Ducharme has testified that she was told she was discharged because there was "no place" for her following the reorganization in the customer service department. She was not informed of any of the specific reasons for her termination that Hall Signs has asserted in its EEOC filing or in this litigation.
Although shifting reasons for an employment decision can raise a fact question on pretext, Hall Signs' stated reasons for Ducharme's discharge have been generally consistent in this case. In its brief, Hall Signs summarized the specific reasons described above under the umbrella reason that Ducharme was not a "team player." To raise an issue of pretext, Ducharme needs to show evidence of a significant discrepancy in the reasons offered by the employer. See O'Connor, 123 F.3d at 670 (although two of three communications about reasons for discharge focused on different aspects of conduct, the reasons given were not inconsistent and therefore did not raise a fact question on pretext); Timm v. Mead Corp., 32 F.3d 273, 275-76 (7th Cir. 1994) (rating of "competent" was not inconsistent with stated reason that plaintiff was discharged for performance problems); Little v. Cox's Supermarkets, 71 F.3d 637, 643 (7th Cir. 1995) (relatively minor differences among the labels attached to plaintiff's conduct, considered together with the undisputed facts, do not suggest pretextual reasons; differences did not rise to a level of inconsistency that permits an inference of discriminatory motive); Rand, 42 F.3d at 1146 (no evidence of pretext where employer gave consistent reasons for termination "in substance if not in word choice").
It is true that Hall Signs did not communicate any of its specific reasons for its decision when it discharged Ducharme. Ducharme was told: "Ann, we're letting you go. . . . Randy is — has reorganized the customer service department and he's putting two reps in each assigned territory, and there's no place for you in that arrangement." See Ducharme Dep. at 241. Ducharme construes the statement "there's no place for you" as an additional and inconsistent reason for her discharge, meaning there was no job available for her in the department.
Even viewing the evidence in the light reasonably most favorable to Ducharme, the statement "there's no place for you in that arrangement" is not sufficiently inconsistent with Hall Signs' stated reasons for her termination to raise an inference of discrimination. The statement was a vague non-reason. It reiterated the conclusion that Ducharme was being "let go" without revealing what motivated Hall Signs' decision. Ducharme cannot raise a fact question on pretext by simply showing that she was not given a full explanation (or any explanation) of the reasons when she was fired.
More generally, Ducharme also argues that Hall is not credible because he first testified that he became aware that Ducharme had taken company documents at his deposition and then explained a few minutes later that his lawyers had told him about the documents months earlier. Based on this change in testimony, Ducharme argues that a jury could reject everything Hall testified about and therefore could find discrimination. On summary judgment, the court gives Ducharme the benefit of all reasonable inferences that flow from the record evidence. Here, Ducharme's argument is not reasonable. Hall did first say that he learned about the documents when he saw the tub of them that Ducharme brought to the first day of his deposition. He later stated he had discussed the fact that Ducharme had retained documents with his counsel around the time Hall Signs' Answer was filed. It is not unusual for sworn witnesses to not initially give complete answers and then to supplement their testimony in response to further questioning by the examining attorney. Without more, a jury could not find that Hall's initial testimony was a lie probative of whether Hall was telling the truth about the reasons for Ducharme's termination.
7. Ducharme's Proffered "Other Evidence of Discrimination"
Ducharme also relies on Hall's alleged statement that he was going to "hire younger people to take the company forward" as additional evidence of pretext. Because the comment was made by the relevant decision-maker but does not relate to the termination decision, it is a "stray remark" and is not direct evidence of discrimination. See Indurante v. Local 705 International Brotherhood of Teamsters, 160 F.3d 364, 367 (7th Cir. 1998), citing O'Connor, 123 F.3d at 671. Stray remarks may be relevant to the question of whether an employer's proffered nondiscriminatory reason is pretextual. See id. "Still, even under the indirect approach, stray remarks must be considered in the context of all the evidence, and may not overcome summary judgment if they stand alone as evidence that might support an inference of pretext." O'Connor, 123 F.3d at 672 (affirming summary judgment for employer where decision-makers had called other employees "old" and had used profanity in reference to them). See also Indurante, 160 F.3d at 368 ("We have never held that a discrimination case must go to a jury if a plaintiff is able to supplement stray remarks with any other probative evidence whatsoever.").
Ducharme has not attempted to proceed under a "direct evidence" theory.
Here, Hall's alleged comment about "hiring younger people to take the company forward" does not raise a fact question on pretext because it does not tend to raise an inference of age discrimination against Ducharme. The comment was made about a year before Ducharme was fired, during a meeting announcing Paige Moser's departure. Because the comment is not at all related to Ducharme's discharge, it does not tend to cast doubt on whether Hall Signs has articulated its honest reasons for the discharge. In the absence of any other evidence of pretext, the comment is not enough to send Ducharme's claim to a jury.
Conclusion
Plaintiff Ducharme's ADEA claim is insufficient as a matter of law because she has failed to establish a prima facie case of age discrimination and because she has not produced any evidence of pretext. The court therefore GRANTS summary judgment to defendant Hall Signs, Inc. Final judgment for defendant Hall Signs, Inc. will be entered.
So ordered.
Date: August 6, 2001
DAVID F. HAMILTON, JUDGE United States District Court, Southern District of Indiana