Opinion
1:02-1039-cv-JDT-TAB
November 13, 2003
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Richard Reynolds ("Reynolds") brings this suit against his employer, ArvinMeritor, Inc. ("Arvin"), pursuant to the Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), and Title VII of the 1964 Civil Rights Act, as amended by Title I of the Civil Rights Act of 1991 ("Title VII"). Reynolds claims that Arvin demoted him to a lower paying position at work because of Reynolds' age, gender, and disability. This action comes before the court on Arvin's Motion for Summary Judgment. The court decides as follows:
I. Background
The story according to Reynolds follows:In 1992, Reynolds was hired by Arvin as an entry-level production worker. Reynolds started at Arvin on the assembly line, cutting steel to make the backing for microwaves. Since 1992, Reynolds has held various different positions at Arvin, but the one relevant to this lawsuit is the job Reynolds held beginning in June 1999. In April 1999, Reynolds started training to become a group leader, a position he officially occupied by June 1999. (Reynolds Aff. ¶¶ 8, 9.) Reynolds was a group leader until October 12, 2001, when Arvin informed Reynolds that he was being removed from the position and that his pay would also be reduced. ( Id. ¶ 7.) Reynolds was still an employee at Arvin at the time he filed this suit.
Arvin asserts that Reynolds was removed from his position as group leader because his performance was unsatisfactory and because Reynolds requested to be removed from the position. Reynolds, on the other hand, alleges that Arvin removed him from the position because of his disability, age, and gender.
Reynolds is male and was born on November 24, 1959. (Reynolds Aff. ¶ 3.) At the time of the demotion, then, Reynolds was 41 years old. Since birth, Reynolds has had Poland Syndrome, an impairment which has left him with a lack of muscle tissue in his left upper extremity. ( Id. ¶ 4.) Reynolds informed Arvin that he had Poland Syndrome before he was hired in 1992. (Reynolds Dep. at 88.) Reynolds' impairment was compounded because of an injury he received in an automobile accident in 1996. (Compl. ¶ 11.)
In September 2001, approximately one month before Reynolds was demoted, Arvin ordered him to clean a new washer, a duty that required Reynolds to lift an enormous lid. The washer was to be cleaned once a week. (Reynolds Aff. ¶¶ 12-14.) Reynolds states that, although he was willing, due to his disability he was unable to lift and move the lid without assistance of another employee or other accommodation. ( Id. ¶ 15.) According to Reynolds, Arvin, through its supervisor, refused to accommodate him and "became belligerent." ( Id. ¶ 16.) Reynolds was then informed on October 12, 2001, that he was being removed from the position of group leader. ( Id. ¶ 17.)
Arvin filled part of the position vacated by Reynolds with Rhonda Fields ("Fields"). Fields is female and older than Reynolds. (Reynolds Dep. at 51.) Fields was not a group leader before taking over Reynolds' former position. ( Id. at 55.) According to Reynolds, Fields was only required to take over half of his job. ( Id. at 52.) The second half of Reynolds' former position was taken over by Valerie O'Leary ("O'Leary"). O'Leary is also female and one or two years younger than Reynolds. ( Id. at 54.) O'Leary was already a group leader when she assumed the second part of Reynolds' former position. ( Id. at 55.) Fields was then transferred to be a group leader on another job and replaced by Stacy Sterling ("Sterling"). ( Id. at 54.) Sterling was a female in her twenties. (Reynolds Aff. ¶ 22.)
In December 2001, Reynolds filed a charge of discrimination against Arvin with the EEOC. (Compl. ¶ 6.) The EEOC sent Reynolds a Notice of Right to Sue in April 2001. ( Id. ¶ 7.) Reynolds filed a Complaint against Arvin in this court on July 8, 2002, alleging disability discrimination in violation of the ADA, age discrimination in violation of the ADEA, and sex discrimination in violation of Title VII and Title I. On August 19, 2002, Arvin filed its Answer. Arvin filed this Motion for Summary Judgment on August 12, 2003. In support of its Motion, Arvin submits portions of Reynolds' deposition, taken on June 12, 2003, and the affidavits of three Arvin supervisors, Michael Burbrink ("Burbrink"), Josh Swift ("Swift"), and Steve Weaver ("Weaver"). Reynolds filed his Memorandum in Opposition to the Motion for Summary Judgment on September 11, 2003. In support, Reynolds filed his own Affidavit. On September 29, 2003, Arvin filed its Reply.
II. Standards A. Summary Judgment
Summary judgment should be granted only if "`the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Schuster v. Lucent Techs., Inc., 327 F.3d 569, 573 (7th Cir. 2003) (quoting Fed.R.Civ.P. 56(c) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). "A genuine issue of material fact exists `only if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Id. (quoting Wade v. Lerner New York, Inc., 243 F.3d 319, 321 (7th Cir. 2001)). Summary judgment is also proper "`[i]f the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial.'" Weiler v. Household Fin. Corp., 101 F.3d 519, 523 (7th Cir. 1996) (quoting Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996)).
When considering motions for summary judgment, the court views and draws all reasonable inferences from the facts in the light most favorable to the nonmoving party. Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 674 (7th Cir. 2003) (citing Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 875 (7th Cir. 2002)). "[A] court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citations omitted). "Rather, `[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.'" Id. (citing Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)).
B. Prima Facie Case
Reynolds' evidentiary burden to withstand the Motion for Summary Judgment is similar for all the discrimination claims he brings. Reynolds may prove intentional discrimination with either direct evidence of Arvin's discriminatory motive or indirect evidence by means of the McDonnell Douglas burden-shifting analysis. See Amadio v. Ford Motor Co., 238 F.3d 919, 924 (7th Cir. 2001) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); DeLuca v. Winer Indus., 53 F.3d 793, 797 (7th Cir. 1995)); Schuster, 327 F.3d at 573; Hildebrandt v. III. Dep't of Natural Res., Nos. 01-3064, 01-3690, 2003 WL 22455964, at *10 (7th Cir. Oct. 30, 2003). " McDonnell Douglas is designed to give the plaintiff a boost when he has no actual evidence of discrimination (or retaliation) but just some suspicious circumstances." Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 643 (7th Cir.), cert. denied, 537 U.S. 879 (2002). Reynolds' case could use a "boost," as he has produced almost no direct evidence to support his claims of discrimination. Thus, the court proceeds under the burden-shifting framework.
Under the burden shifting method, first the plaintiff has the burden to produce sufficient evidence "to create a triable issue of fact" on each of the elements of the prima facie case. Lesch v. Crown Cork Seal Co., 282 F.3d 467, 472 (7th Cir. 2002). There are four elements of the prima facie case. The first three elements require Reynolds to demonstrate that: (1) he is a member of the protected class; (2) he was performing his job satisfactorily; and (3) he was subject to an adverse employment action. Amadio, 238 F.3d at 924; Schuster, 327 F.3d at 574 (citation omitted); Hildebrandt, 2003 WL 22455964, at *10 (citations omitted). The Seventh Circuit has applied a variety of different permutations of the fourth element of the prima facie case for intentional discrimination according to the type of discrimination alleged. Miller v. Borden, Inc., 168 F.3d 308, 313 (7th Cir. 1999) (citing Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 451 n. 1 (7th Cir. 1998); Gadsby v. Norwalk Furniture Corp., 71 F.3d 1324, 1331-32 (7th Cir. 1995)). As discussed further below, the court finds that the most appropriate formulation of the fourth element for the present case is to require Reynolds to demonstrate that he was replaced by someone who is outside the protected class or substantially younger. See Lesch, 282 F.3d at 472 (citing Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000)); Miller, 168 F.3d at 313 (citing Gadsby, 71 F.3d at 1331); see also Vaughn v. Watkins Motor Lines, Inc., 291 F.3d 900, 906 (6th Cir. 2002) (citation omitted).
If Reynolds succeeds in making out a prima facie case, then the burden shifts to Arvin. Arvin must then provide a legitimate, nondiscriminatory explanation for the demotion. Amadio, 238 F.3d at 924 (citation omitted); Schuster, 327 F.3d at 574 (citation omitted); Hildebrandt, 2003 WL 22455964, at *10 (citing Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002)). If Arvin provides a legitimate, nondiscriminatory explanation, the burden returns to Reynolds, who must then show that the proffered reason is a mere pretext for discrimination. Amadio, 238 F.3d at 924 (citations omitted); Schuster, 327 F.3d at 574 (citations omitted); Hildebrandt, 2003 WL 22455964, at *10 (citations omitted). "To survive a motion for summary judgment, [Reynolds] must produce evidence that `create[s] an issue of fact as to whether the reasons offered by [Arvin] were sincere.'" Pugh v. City of Attica, 259 F.3d 619, 626 (7th Cir. 2001) (quoting Green v. Nat'l Steel Corp., 197 F.3d 894, 898-99 (7th Cir. 1999)). In other words, Reynolds must "muster sufficient evidence to convince a rational jury that [Arvin's] justifications were pretextual." Lesch, 282 F.3d at 472-73 (citing Beatty v. Wood, 204 F.3d 713, 717 (7th Cir. 2000)).
III. First Element
Arvin concedes that Reynolds can satisfy the first element of the prima facie case for his claims of age and gender discrimination. Arvin argues that Reynolds cannot produce evidence to satisfy the first element of the prima facie case for his claim of disability discrimination."[T]o prove membership in the ADA'S protected class, a plaintiff must establish up to three elements: (1) a disability; (2) the ability to perform the essential functions of the employment position; and (3) if unable to perform the essential functions without accommodation, the existence of a reasonable accommodation that would allow performance of the position's essential functions." Amadio, 238 F.3d at 925. An individual is "disabled" within the meaning of the ADA if he has "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) [is] regarded as having such an impairment." Id. (quoting 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g)). Thus, in order to satisfy the first element of the prima facie case for disability discrimination, Reynolds must present evidence both of an impairment and evidence that the impairment substantially limits a major life activity.
Arvin does not appear to dispute that Reynolds has a physical impairment. But before the court turns to the issue of whether the physical impairment substantially limits a major life activity, it is necessary to determine the precise physical impairment alleged. Reynolds alleged in his Complaint the following: "Plaintiff has a pre-existing disability in that he has limited use of his left arm and hand." (Compl. ¶ 10.) "Plaintiff's disability has been compounded as the result of an injury he received in an automobile accident in 1996 which resulted in his being given permanent restrictions regarding bending, twisting and lifting." ( Id. ¶ 11.) But Reynolds, in his Affidavit and Memo in Opposition, only asserts that he is disabled because of Poland Syndrome and does not assert facts related to the automobile accident. Arvin, on the other hand, addresses both possible claims as to causes of disability. ( See Def.'s Br. Supp. Mot. Summ. J., Statement of Material Facts Not in Dispute ¶¶ 33-35.)
"Merely having an impairment does not make one disabled for the purposes of the ADA." Toyota Motor Mfg. v. Williams, 534 U.S. 184, 195 (2002). Reynolds needs to demonstrate that his Poland Syndrome substantially limits a major life activity. Id. (citing 42 U.S.C. § 12102(2)(A)). "According to the EEOC regulations, `substantially limit[ed]' means `[u]nable to perform a major life activity that the average person in the general population can perform'; or `[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.'" Id. at 195-96 (quoting 29 C.F.R. § 1630.29(j)). "Major life activities are defined to include `functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.'" Baulos v. Roadway Express, Inc., 139 F.3d 1147, 1151 (7th Cir. 1998) (quoting 29 C.F.R. § 1630.2(i)).
Reynolds has provided a list of activities that he alleges his impairment prevents him from doing. Reynolds claims that because of Poland Syndrome, he is unable to 1) hold anything heavy in his left hand, except momentarily, 2) move the fingers of his left hand properly, 3) rotate his left arm and wrist, 4) play physical games with his grandchildren, 5) grip objects in his left hand, 6) mow the lawn, 7) perform routine automotive repairs requiring the use of two hands, and 8) button his clothing. (Reynolds Aff. ¶ 5.) Additionally, a footnote in Plaintiff's Memorandum in Opposition states: "Reynolds [sic] visibly disabled as his left arm is shorter than his right arm and his left [sic] and is approximately one half the size of his right hand." (Pl.'s Mem. Opp'n Mot. Summ. J. at 2 n. 2.) That is all the evidence Reynolds has produced to demonstrate that he is disabled.
"It is the plaintiff's burden on summary judgment to demonstrate that he can `come up with evidence to show he could meet his ultimate burden of showing [a]. . . recognized disability.'" Stein v. Ashcroft, 284 F.3d 721, 727 (7th Cir. 2002) (quoting Contreras v. Suncast Corp., 237 F.3d 756, 763 (7th Cir. 2001)). In the present case, the court cannot hold that Reynolds has presented sufficient evidence to present a triable issue. The only evidence Reynolds submitted to demonstrate that his impairment limits a major life activity is his Affidavit, in which he asserts various ways in which Poland Syndrome affects his life. In the context of showing disability, the Seventh Circuit has held that "[b]ald and self-serving assertions in affidavits, unsubstantiated by any documentation or other testimony, are not sufficient to create a material issue of fact as to whether an impairment has substantially limited a major life activity." Id. at 726 (citing Contreras, 237 F.3d at 764). Reynolds has not submitted any medical records or any other documentation that would qualify as objective evidence to support his assertions of how Poland Syndrome substantially limits his activities. This is not to say that Reynolds was required to present medical evidence, only that some form of objective evidence must support the bald assertions in his Affidavit. See Martyne v. Parkside Med. Servs., No. 97-C-8295, 2000 WL 748096, at *4 (N.D. Ill. June 8, 2000).
Moreover, Reynolds does not, nor could he successfully, argue that summary judgment should be denied because he is restricted from the major life activity of working. In order to demonstrate this, Reynolds would have to produce evidence that he is prevented from working a broad class of jobs. See Peters v. City of Mauston, 311 F.3d 835, 843 (7th Cir. 2002) ("A terminated employee must present some evidence "`of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs . . . from which an individual would be excluded because of an impairment."'" (quoting Rockwell Int'l Corp., 243 F.3d at 1017)). Reynolds has not produced this evidence. Reynolds argues that his impairment limits his ability to do certain tasks at work, but the inability to do only certain tasks is not sufficient to show a substantial limitation on a major life activity. See Stein, 284 F.3d at 726 ("A plaintiff's inability to perform `one narrow job for one employer' is insufficient to establish a disability." (quoting Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1998))); Baulos, 139 F.3d at 1151 ("`It is now well-established than an inability to perform a particular job for a particular employer is not sufficient to establish a substantial limitation on the ability to work; rather, the impairment must substantially limit employment generally.'" (quoting Homeyer v. Stanley Tulchin Assocs., 91 F.3d 959, 961 (7th Cir. 1996))); Contreras, 237 F.3d at 762 ("When we discuss the major life activity of working, `substantially limits' means the individual is significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes." (citing Webb v. Clyde L. Choate Mental Health Dev. Ctr., 230 F.3d 991, 998 (7th Cir. 2000))).
Compare EEOC v. Rockwell Int'l Corp., 243 F.3d 1012, 1017 (7th Cir. 2001) (stating that "working" is a major life activity), with Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1060 n. 2 (7th Cir. 2000) (discussing the uncertainty as to whether "working" is a major life activity).
Reynolds has also failed to present sufficient evidence to present a triable issue of fact concerning whether Arvin regarded him as disabled. "To fall within the statutory definition of one `regarded as disabled,' the plaintiff must show that: `(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.'" Mack v. Great Dane Trailers, 308 F.3d 776, 780 (7th Cir. 2002) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999)); see also Peters, 311 F.3d at 843 (citations omitted). "Under the ADA, the concepts of `substantially limits' and `major life activity' are the same whether the employee is proceeding under a claim that she is actually disabled or regarded as disabled." Mack, 308 F.3d at 781. "[I]t is not enough for a plaintiff to show that the employer knew of the plaintiff's impairment." Amadio, 238 F.3d at 925 (citing Davidson, 133 F.3d at 510). "The plaintiff must also show that the employer believed that one or more of the plaintiff's major life activities were substantially limited by the plaintiff's impairment." Id. Reynolds has not presented any evidence demonstrating that Arvin believed one or more of his major life activities were substantially impaired by Poland Syndrome. Hence, Reynolds' claim of discrimination based on disability ends here. Defendant's Motion for Summary Judgment on the claim of disability discrimination will be GRANTED.
IV. Second Element
Arvin concedes that Reynolds is a protected party under the ADEA and Title VII and that he has suffered adverse employment action, but argues that Reynolds has not met his burden in demonstrating the second and fourth elements of the prima facie test for discrimination.
The second element of the prima facie test is clearly in dispute: Reynolds argues that he performed his job satisfactorily; Arvin argues that Reynolds did not perform his job satisfactorily. Because the facts in a summary judgment case must be construed in the light most favorable to the nonmovant, the court must sort out the facts and proceed with the analysis using the facts most favorable to Reynolds. Arvin's argument is supported by two affidavits. The first affidavit is provided by Burbrink, the Business Unit Manager for the Inflatable Restraints business unit at Arvin. Burbrink states that "Reynolds' performance as a group leader was unsatisfactory." (Burbink Aff. ¶ 4.) Additionally, he adds, "Reynolds was counseled on several occasions regarding issues such as poor inventory control, lack of production, and poor housekeeping." ( Id. ¶ 5.) "In September of 2001, after once again being told that his performance was not meeting expectations, Reynolds informed me and supervisor Steve Weaver that he could not control those working for him and asked to be removed from the group leader position." ( Id. ¶ 6.) "Due to Reynolds' unacceptable performance, coupled with my and others' belief that Reynolds no longer wanted to work as a group leader, Reynolds was removed from the group leader position in October of 2001." ( Id. ¶ 7.) As business unit manager in the unit in which Reynolds was a group leader, Burbrink has sufficient personal knowledge required to provide such statements; they suffice as evidence. The second affidavit was taken from Swift, who was Reynolds' "actual" supervisor before he was demoted. Swift's Affidavit does not contain any statements relating to Reynolds' performance as group leader. The third affidavit was taken from Weaver, the Skilled Trades Supervisor at Arvin. Weaver's Affidavit states, verbatim, the same criticism of Reynolds performance as Burbrink's Affidavit. "In September of 2001, after once again being told his performance was not meeting expectations, Reynolds informed me and Michael Burbrink that he could not control those working for him and asked to be removed from the group leader position." (Weaver Aff. ¶ 4.) "Due to Reynolds' unacceptable performance, coupled with my and others' belief that Reynolds no longer wanted to work as a group leader, ArvinMeritor removed Reynolds from the group leader position." ( Id. ¶ 5.) As a supervisor, it can be assumed that Weaver also had personal knowledge. Neither affidavit explains why Reynolds' performance was unacceptable.
Reynolds argues that his performance as group leader was satisfactory. To support this argument, he provides his own Affidavit, which provides: "While on the job as a group leader, I was never disciplined or told I failed to meet Arvin's performance expectations." (Reynolds Aff. ¶ 10.) With respect to admissibility, the first piece of evidence Reynolds offers is the assertion that he was never disciplined. Whether Reynolds was disciplined is a fact of which Reynolds clearly would have personal knowledge. The second piece of evidence Reynolds offers is the statement that he was never told he failed to meet Arvin's expectations. This is also a factual statement about which Reynolds would have knowledge.
Even though there is a general dispute over a material fact, Reynolds still needs to satisfy his burden of production. The next step, then, is, taking the version of the facts most favorable to Reynolds, to determine whether Reynolds has produced enough evidence to demonstrate that he was meeting his company's legitimate employment expectations at the time of demotion. Reynolds need not present a lot of evidence at this stage of the prima facie test; he is only required to produce "more than a scintilla of evidence to support his position." Pugh, 259 F.3d at 625 (citing Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669 (7th Cir. 2000)).
Because Arvin's proffered legitimate, nondiscriminatory explanation for removing Reynolds is that Reynolds was performing inadequately, it is tempting to merge the second element of the prima facie test with the discussion of pretext. However, the Seventh Circuit has explicitly held that it does not endorse the practice. See Peele v. Country Mutual Ins. Co., 288 F.3d 319, 327 (7th Cir. 2002) ("We have consistently held that `the prima facie case under McDonnell Douglas must be established and not merely incanted.'" (citation omitted)). In Peele, the Seventh Circuit criticized the district court for bypassing the prima facie analysis because the case boiled down to the plaintiff's job performance.
Arvin argues that Reynolds cannot satisfy this burden because Reynolds only offers his subjective assessment that his performance was satisfactory and that Reynolds' subjective views of his performance do not create a genuine issue of material fact. "Although general averments of adequate performance are insufficient to create a factual issue on summary judgment . . ., a plaintiff may create an issue of fact by specifically refuting facts that allegedly support the employer's claim of performance deficiencies." Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1460 (7th Cir. 1994) (citations omitted). Reynolds offers more than just subjective assessments of his performance. Reynolds has offered specific factual assertions to rebut Arvin's claim that he was performing inadequately. Namely, he swears that he was never disciplined while a group leader, and was never told that he was not meeting Arvin's performance expectations. These are facts about which he would have first hand knowledge. This is much more than a conclusory self evaluation of his own job performance.
Moreover, merely the fact that Reynolds' Affidavit is self-serving does not mean it lacks evidentiary value. The Seventh Circuit in Payne v. Pauley, 337 F.3d 767, and in Williams v. Seniff, clarified the "self-serving affidavit" taboo:
We have stated that generally, "[a]n employee's self-serving statements about his ability . . . are insufficient to contradict an employer's negative assessment of that ability." However, we recently clarified this principle by noting explicitly that it is not the mere self-serving nature of a nonmovant's affidavit that renders such evidence infirm. Rather, it is the absence of personal knowledge or the failure to set forth "specific facts" as required by Rule 56(c) of the Federal Rules of Civil Procedure that is problematic.342 F.3d 774, 789 (7th Cir. 2003) (internal citations omitted). The court believes that Reynolds has presented more than a scintilla of evidence to demonstrate that he performed satisfactorily.
Furthermore, even if it is argued that Reynolds has not provided enough evidence to satisfy his prima facie case, the court finds another reason to move to the discussion of pretext. "When a plaintiff produces evidence sufficient to raise an inference that an employer applied its legitimate employment expectations in a disparate manner (i.e., applied expectations to similarly situated male and younger employees in a more favorable manner), the second and fourth prongs of McDonnell Douglas merge — allowing the plaintiff to establish a prima facie case, stave off summary judgment for the time being, and proceed to the pretext inquiry." Pelee, 288 F.3d at 329 (italics removed) (citing Curry v. Menard, 270 F.3d 473, 478 (7th Cir. 2001); Gordon v. United Airlines, Inc., 246 F.3d 878, 886-87 (7th Cir. 2001); Oest v. III. Dep't of Corr., 240 F.3d 605, 612 n. 3 (7th Cir. 2001); Flores v. Preferred Tech. Group, 182 F.3d 512, 515 (7th Cir. 1999); Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1180 (7th Cir. 1997)). In the present case, Reynolds argues that Arvin treated him unfairly by requiring him to perform alone the job that is now occupied by two employees. Reynolds asserts: "Arvin split my job and assigned two female employees the duties previously required solely of me to complete." (Reynolds Aff. ¶ 19.) "The two female employees are allowed more set up time, allowed to run fewer machines and are not required to clean the washer individually." ( Id. ¶ 20.) "The net effect of removing me as a group leader was that two female employees, one in her thirties and one in her twenties, were promoted to group leader while I was demoted." ( Id. ¶ 22 (emphasis removed).) A jury could reasonably infer that the two replacements had fewer responsibilities and that the division of the responsibilities made it easier for the replacements to perform satisfactorily.
Reynolds does not present much foundation for this statement. However, the record supports that Reynolds was still retained as an employee at Arvin after the demotion, which would permit Reynolds to observe his replacements. Additionally, this statement is supported by Arvin's admission in its statement of material facts not in dispute: "Reynolds' group leader responsibilities were divided between Rhonda Fields and Valerie O'Leary." (Def.'s Br. Supp. Mot. Summ. J., Statement of Material Facts Not in Dispute ¶ 25.)
V. Fourth Element
Both parties in their Briefs have phrased the fourth element of the prima facie test as whether a similarly situated employee outside the protected class is treated more favorably. That is one articulation of the fourth element, but not the only one. A more appropriate formulation for the present case follows: "[W]here 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." Hoffman v. Primedia Special Interest Publ'ns, 217 F.3d 522, 524 (7th Cir. 2000) (citing Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1028 (7th Cir. 1998)); accord Johnson v. Zema Sys. Corp., 170 F.3d 734, 746 (7th Cir. 1999). Furthermore, the fact pattern in the present case is very similar to the fact pattern in mini-reduction in force cases. In mini-RIF cases, where there can be no clear replacement because an employer "in the course of restructuring the business, terminates an employee and does not replace the terminated employee, but arranges affairs so that the `responsibilities [of the terminated employee are] absorbed by other employees,'" the Seventh Circuit has applied a further modification to the fourth element. Miller, 168 F.3d at 313 (quoting Cengr, 135 F.3d at 451 n. 1). The Seventh Circuit has explained, "that `the inference of discrimination [in such cases] is premised on some degree of fungibility between the [terminated employee's] job and the younger employee's job.'" Id. (quoting Gadsby, 71 F.3d at 1331) (footnote omitted). "In the `fungibility' type of situation, all the employee needs to establish is that he was treated less favorably than one or more similarly situated younger employees." Id. (citing Gadsby, 71 F.3d at 1331; Maier v. Lucent Techs., Inc., 120 F.3d 730, 735 (7th Cir. 1997)) (footnote omitted). "Thus, an employer who discharges a protected employee and either hires or retains younger employees `to fill positions for which the older employee was qualified' bears the burden of explaining its actions." Id. (quoting Oxman v. WLS-TV, 846 F.2d 448, 455-56 (7th Cir. 1988)).
Although both parties state that Reynolds was replaced by two employees, it is apparent that the parties are actually referring to three different employees. Reynolds alleges that Arvin initially replaced Reynolds with O'Leary and Fields. O'Leary is only one or two years younger than Reynolds. (Reynolds Dep. at 54.) Fields is older than Reynolds. ( Id. at 51.) Reynolds does not dispute this fact. Rather, Reynolds claims that Arvin is playing a shell game. That is, he alleges that Arvin first replaced him with an employee who is older than Reynolds, but then soon after replaced her with another employee who is significantly younger than Reynolds-Sterling. Thus, Arvin created the appearance that Reynolds was being replaced by one older employee and one only a few years younger than Reynolds, when in fact he was replaced by a substantially younger employee. ( See Pl.'s Mem. Opp'n Mot. Summ. J. at 6.) So it appears that Reynolds has identified Sterling for purposes of the fourth element of the prima facie test for age discrimination, and has identified Fields, O'Leary, and Sterling for purposes of the fourth element of the prima facie test for gender discrimination.
Arvin argues that because O'Leary is also a member of the protected class under the ADEA, Reynolds cannot invoke the protection of the ADEA. The case law holds differently. "An ADEA plaintiff who shows that someone `substantially younger' was retained instead of the plaintiff need not prove that the replacement is outside the protected class." Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 321 (7th Cir. 2003) (citing O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996)). Rather, Reynolds need only demonstrate that O'Leary is about ten years younger. See id. at 322 ("The Seventh Circuit has defined `substantially younger' as generally ten years younger." (citing Hartley v. Wis. Bell, Inc., 124 F.3d 887, 893 (7th Cir. 1997))). With respect to O'Leary, the court finds that she is not a substantially younger replacement so as to permit Reynolds to invoke the protection of the ADEA because the age difference between O'Leary and Reynolds is not substantial.
But with respect to Sterling, Reynolds' statement that Sterling was in her twenties (Reynolds Aff. ¶ 22) is permissible lay opinion evidence. Reynolds' claim that shortly after Fields assumed some of his former responsibilities, Sterling replaced Fields, is also sufficiently supported by the record. Reynolds testified that "they put Rhonda as group leader on another job and moved Stacy in Rhonda's position." (Reynolds Dep. at 54.) Because Reynolds was not discharged from Arvin, but demoted, it can reasonably be inferred that Reynolds would have had sufficient personal knowledge of whether Fields was replaced by Sterling. Furthermore, Arvin concedes that Reynolds' group leader duties were divided between Fields and O'Leary. (Def.'s Rep. Br. Supp. Mot. Summ. J., Statement of Material Facts Not in Dispute ¶ 25.) The court finds that Reynolds has satisfied the fourth element of the prima facie test for age discrimination by producing evidence demonstrating that he was replaced by at least one substantially younger employee.
Furthermore, the parties do not dispute that Sterling, O'Leary, and Fields are women. Thus, Reynolds has also demonstrated that he was replaced by members outside the protected class with respect to his claim of gender discrimination.
VI. Legitimate, Non-Discriminatory Explanation/Pretext
Because Reynolds has met his burden of demonstrating the prima facie case for gender and age discrimination, the burden of production shifts to Arvin to provide a legitimate, nondiscriminatory explanation for demoting Reynolds. Arvin states that it demoted Reynolds based on his unsatisfactory performance, coupled with Arvin's belief that Reynolds wanted to be demoted based on Reynolds' alleged request to be demoted. (Def.'s Br. Supp. Mot. Summ. J., Statement of Material Facts Not in Dispute ¶ 22.) That is a facially legitimate explanation; the burden shifts back to Reynolds to demonstrate pretext.
To demonstrate pretext, Reynolds must provide sufficient evidence demonstrating either that Arvin was "motivated by a discriminatory reason" or that Arvin's proffered explanation "is unworthy of credence." Zaccagnini, 338 F.3d at 676 (citation omitted); accord Schuster, 327 F.3d at 574 (citation omitted). "Where an employer offers multiple independently sufficient justifications for an adverse employment action, the plaintiff-employee must cast doubt on each of them." Lesch, 282 F.3d at 473 (citing Walker v. Glickman, 241 F.3d 884, 890 (7th Cir. 2001)). "A plaintiff-employee may proceed indirectly by attempting to show that the employer's `ostensible justification is unworthy of credence' through 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.'" Schuster, 327 F.3d at 574-75 (quoting Testerman v. EDS Tech. Prods. Corp., 98 F.3d 297, 303 (7th Cir. 1996)). "`Because a fact-finder may infer intentional discrimination from an employer's untruthfulness, evidence that calls truthfulness into question precludes a summary judgment.'" Zaccagnini, 338 F.3d at 676 (quoting Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir. 1995)). Reynolds, thus, "may avoid summary judgment by pointing to specific facts that place [Arvin's] explanation in doubt." Id. (citing Schuster, 327 F.3d at 578); see also Pugh, 259 F.3d at 627 (stating that in order to succeed, a plaintiff must "present evidence to create a material dispute as to the [defendant's] honest belief in its proffered explanation (citing Green, 197 F.3d at 899)). Finally, "[w]hether a court finds sufficient evidence to create an issue of material fact depends upon the entire record: `When a plaintiff uses the indirect method of proof, no one piece of evidence need support a finding of age discrimination, but rather the court must take the facts as a whole.'" Schuster, 327 F.3d at 575 (quoting Huff v. UARCO, Inc., 122 F.3d 374, 385 (7th Cir. 1997)).
It is clear that there is a dispute about the facts underlying one of the two explanations Arvin provided for demoting Reynolds. Arvin states that part of the reason for demoting Reynolds was because Arvin believed Reynolds wanted to be demoted. This belief was allegedly based on Reynolds informing Burbrink and Weaver that he wished to be demoted. Reynolds asserts that he never asked to be demoted. "Where the material facts specifically averred by one party contradict the facts averred by a party moving for summary judgment, the motion must be denied." Payne, 337 F.3d at 773 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). The court finds that there is a genuine issue of material fact concerning Arvin's assertion that it demoted Reynolds because Reynolds asked to be demoted.
There is also a dispute with respect to Arvin's primary explanation for demoting Reynolds — that Reynolds' performance as group leader was unsatisfactory. As discussed above, Reynolds has produced enough evidence to create a material issue of fact as to whether Reynolds' performance was satisfactory. The Seventh Circuit has "routinely found that a nonmoving party's own affidavit can constitute affirmative evidence to defeat a summary judgment motion." Payne, 337 F.3d at 771 (citing Wohl v. Spectrum Mfg., 94 F.3d 353, 358 (7th Cir. 1996); Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994); Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1041 (7th Cir. 1993); Wilson v. Williams, 997 F.2d 348, 351 (7th Cir. 1993); Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992)). "A detailed refutation of events which underlie the employer's negative performance assessment demonstrates that the employer may not have honestly relied on the identified deficiencies in making its decision. The plaintiff could thereby create a factual issue as to whether the employer's explanation is credible or merely a pretext for discrimination." Dey, 28 F.3d at 1460-61.
Furthermore, a number of factors makes Arvin's assertion that it demoted Reynolds because of his unsatisfactory performance seem dubious. There is the fact that after Reynolds' demotion, Arvin divided the responsibilities, which Reynolds had to perform alone, between two employees, which is evidence tending to damage the credibility of Arvin's proffered explanation. A rational jury could infer that Reynolds was performing satisfactorily, and even surpassing Arvin's legitimate expectations in fulfilling the responsibilities of a position that should in fact have been fulfilled by two employees. Moreover, although there is an issue of material fact as to whether Reynolds performed satisfactorily, it at least appears that Reynolds was able to perform all the responsibilities of the position. Arvin's Statement of Material Facts Not in Dispute states: "Reynolds has been able to perform all the job functions he has been asked to perform at Arvin Meritor." (Def.'s Br. Supp. Mot. Summ. J., Statement of Material Facts Not in Dispute ¶ 35.)
Additionally, from the record, Arvin's explanation for demoting Reynolds seems suspiciously uncorroborated. First, although Arvin alleges that Reynolds performance was poor, Arvin does not present any documentation of warnings, notices, or reports created before the lawsuit. All affidavits provided by Arvin were signed on August 11, 2003, clearly in preparation for this lawsuit. Additionally, the record and Defendant's Memorandum reference the existence of "disciplinary notices," suggesting that Arvin does document problems with employees. ( See Def.'s Br. Supp. Mot. Summ. J., Statement of Material Facts Not in Dispute ¶ 9 (citing Reynolds Dep. at 36).) Second, there is a suspicious lack of detail in the affidavits, which support Arvin's explanation. The affidavit provided by Burbrink asserts that "Reynolds was counseled on several occasions regarding issues such as poor inventory control, lack of production, and poor housekeeping." (Burbrink Aff. ¶ 5.) But Arvin has not provided any specific information, such as the dates on which Reynolds was counseled, aside from the September 2001 date, in what form and by whom he was counseled, what steps were taken in response to the counseling, or how many times is meant by "several occasions." Weaver's Affidavit provides even less detail. At best, these affidavits are conclusory and self serving in favor of Arvin, perhaps the equivalent of the oft criticized efforts of nonmovants to prove the adequacy of their job performance.
Third, the two affidavits that allege Reynolds' performance was unsatisfactory were provided by Weaver and Burbrink, who, according to the record, were not Reynolds' "actual" supervisors when he was demoted. ( See Reynolds Dep. at 99.) In fact, Swift was Reynolds' "actual" supervisor, and his Affidavit did not discuss any problems Arvin had with Reynolds' performance as group leader. A jury could reasonably give Arvin's explanation less credence because the statements that Reynolds was performing unsatisfactorily were not corroborated by Swift. Moreover, it is suspect that Swift's Affidavit does not mention these meetings at which Reynolds was allegedly counseled; as Reynolds' "actual" supervisor, it seems Swift should have been a participant.
Perhaps there is a fourth reason as well. The Weaver and Burbrink Affidavits conflict directly with the Defendant's own assertion of undisputed fact that the Plaintiff has been able to perform all of the job functions he has been asked to perform at Arvin. ( See Def.'s Br. Supp. Mot. Summ. J., Statement of Material Facts Not in Dispute ¶ 35 (citing Reynolds Dep. at 88-89).)
Arvin argues that Reynolds confirmed the lack of pretext when he testified at his deposition his belief that Arvin demoted him because Reynolds went over Burbrink's head. However, a plaintiff's assertions of the defendant's intent, based on pure speculation, is not evidence. Amadio, 238 F.3d at 927 ("It is well-settled that speculation may not be used to manufacture a genuine issue of fact." (citations omitted)). Reynolds' speculation as to the intent of Arvin is no more legitimate if it is damaging to Reynolds' case than if it is helpful.
Finally, Reynolds need not provide any evidence of discrimination in order to demonstrate pretext.
"We emphasize that [plaintiff's] failure to bring any evidence regarding age does not defeat his claim per se, the special virtue of the indirect method of proof is that it allows victims of age discrimination to prevail without presenting any evidence that age was a determining factor in the employer's motivation. Holding to the contrary would violate one of the purposes of McDonnell Douglas and Burdine, which is to permit plaintiffs to recover, even if they are unable to discover evidence of discrimination, simply by proving that the employer's proffered justification is unworthy of credence."Zaccagnini, 338 F.3d at 680 (quoting Perfetti v. First Nat'l Bank of Chi., 950 F.2d 449, 451-52 (7th Cir. 1991)).
The court finds that Reynolds has presented enough evidence for a reasonable jury to find that Arvin's primary explanation for demoting Reynolds is not credible and that therefore the real motivation may have been an improper one. This finding, in addition to the findings above that there are genuine issues of material fact concerning whether Reynolds asked to be demoted and whether Reynolds was performing satisfactorily, leads the court to conclude that Reynolds' claims of age and gender discrimination merit a jury trial. The court does not intend to suggest that Reynolds has a strong case of discrimination, only that he has presented the bare minimum evidence required for a jury trial. See Huff, 122 F.3d at 385-86 (citing Partington v. Broyhill Furniture Indus., 999 F.2d 269 (7th Cir. 1993)). Defendant's Motion for Summary Judgment on the claims of age and gender discrimination is DENIED.
VII. Harassment
Reynolds also argues that "by assigning to him the job duty of lifting the washer lid knowing full well that this job required the use of two hands and knowing that he would not be able to perform this task using only one hand, [Arvin] harassed him based on his disability." (Pl.'s Mem. Opp'n Mot. Summ. J. at 5.) The Seventh Circuit has assumed the existence of a claim of hostile work environment under the ADA, while also noting that the Circuit has never explicitly recognized the claim under the ADA. See Silk v. City of Chi., 194 F.3d 788, 803 (7th Cir. 1999) (citing Miranda v. Wis. Power Light Co., 91 F.3d 1011, 1017 (7th Cir. 1996)). To succeed in a claim of harassment under the ADA, Reynolds must be able to demonstrate that his work environment is subjectively and objectively hostile. Id. at 804 (citing Adusumilli v. City of Chi., 164 F.3d 353, 361 (7th Cir. 1998) (internal citation omitted)). Cf. Hilt-Dyson v. City of Chi., 282 F.3d 456, 463 (7th Cir. 2002). "`An objectively hostile environment is one that a reasonable person would find hostile or abusive.'" Silk, 194 F.3d at 804 (quoting Adusumilli, 164 F.3d at 361 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993))). "`In determining whether a plaintiff has met this standard, courts must consider all the circumstances, including `the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. (quoting Adusumilli, 164 F.3d at 361 (quoting Ham's, 510 U.S. at 23)). "To amount to hostile workplace environment, the harassment must be `so "severe or pervasive" as to "alter the conditions of [the victim's] employment and create an abusive working environment."'" Id. (internal citations omitted).
Any harassment Reynolds felt because he was asked to perform the new duty of cleaning the lid on the new washer cannot reasonably be said to be severe or pervasive enough to constitute a hostile work environment cause of action under the ADA. The incident cited by Reynolds was a one time occurrence, the supervisor did not pick out Reynolds alone for the duty, but assembled three employees whom Arvin instructed to clean the washer, and there is no evidence in the record that tends to support a claim that the supervisor would have reason to believe assigning the task of cleaning the lid to Reynolds would in someway make Reynolds feel harassed. Defendant's Motion for Summary Judgment on the claim of hostile work environment based on disability will be GRANTED.
VIII. ADA Retaliation?
As discussed above, the Plaintiff has squeaked by summary judgment on his gender and age discrimination claims. The allegations of the Complaint leave one lingering question: does the Plaintiff assert a claim for retaliation under the ADA, pursuant to 42 U.S.C. § 12203, either because he sought an accommodation or because he opposed the denial of a reasonable accommodation? Plaintiff's Complaint suggests that he does. ( See Compl. ¶ 19.) Yet, the court refers to that portion of his Complaint as merely a suggestion because, although that assertion is contained in the portion of the Complaint labeled "Statement of Claims," the remainder of the Complaint consists of three specifically pleaded theories (labeled "Counts") of disability, gender, and age discrimination, with no specific reference to retaliation. Moreover, the Case Management Plan (CMP), which should be more direct than the Complaint in articulating the specific legal theories of the Plaintiff, only refers to disability, gender, and age discrimination in the Plaintiff's summary of his claims. ( See CMP § 2(A).) Apparently, the Defendant assumes that the Plaintiff is not asserting a retaliation claim because neither of its Summary Judgment Briefs present arguments about retaliation, and instead, their focus is on the three specifically pleaded discrimination claims discussed in this Entry. Perhaps that assumption is correct because not even the Plaintiff's brief in opposition to the summary judgment motion contends that a retaliation claim would survive, even if the discrimination claims do not, and the court would have expected some articulation of that contention if the Plaintiff truly intends to pursue a retaliation claim. At best, any such claim is hypothetical at this point, and may suffer from procedural and substantive defects. The simplest way to solve this puzzle is to require counsel for the Plaintiff to file a statement within ten days of the date of this Entry indicating whether a retaliation claim is being pursued, with a detailed articulation of the factual and legal basis for such a claim. If such a statement is filed, the Defendant will have thirty days from the date of the filing of the statement to file a supplemental motion for partial summary judgment directed at such a retaliation claim only, and the regular briefing schedule of Local Rule 56.1 will proceed. If no such statement is filed, a telephone conference with counsel will be scheduled to select a trial date for the remaining claims.IX. Conclusion
For the foregoing reasons, the Defendant's Motion for Summary Judgment will be GRANTED in part and is DENIED in part. Entry of judgment awaits disposition of the remaining claims.
ALL OF WHICH IS ORDERED.