United States District Court, Northern District of Illinois, E.D
July 17, 1985
JOSEPH M. CEBULA, PLAINTIFF,
GENERAL ELECTRIC COMPANY, DEFENDANT.
The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
The General Electric Company ("GE") fired Joseph Cebula
("Cebula") on August 29, 1983. Cebula, who was 45 years old at
the time, had worked for GE for about five years. He alleges that
GE dismissed him because of his age, violating the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et
seq. Cebula also alleges that when his supervisor taped his
conversation during the termination meeting, GE violated the
Illinois Eavesdropping Act, Ill.Rev.Stat. ch. 38, §§ 14-1 to 14-9
(1983). GE has moved for summary judgment, while Cebula has moved
for partial summary judgment on the eavesdropping claim. For the
following reasons, GE's motion is granted as to both claims and
Cebula's motion is denied.
The following material facts are undisputed. Cebula began
working for GE in 1978 as a Customer Service Representative. His
responsibilities included installing and servicing x-ray and
other medical diagnostic imaging equipment at medical
institutions. GE provided Cebula with service and equipment
GE reviewed Cebula's performance regularly. Cebula's immediate
supervisor Walter Taken ("Taken") and his manager James Fetterman
("Fetterman") reviewed his performance for the first time on
March 28, 1979. Cebula's overall performance was rated
"acceptable," while his overall appraisal was rated
"satisfactory." The possible ratings included, in ascending
order, unacceptable, acceptable, satisfactory, fully
satisfactory, excellent and outstanding.*fn1 Taken also noted that
Cebula needed to continue to develop his technical base and
become familiar with GE's basic products.
At the conclusion of Cebula's first year of employment with GE,
Taken and Fetterman rated his performance "satisfactory."
However, they warned him to "rapidly" expand his technical
knowledge about GE products. Further, they suggested that he take
more tape courses in order to stay current on GE products.
On November 28, 1980, Taken and Fetterman reviewed Cebula's
performance for the third time. Although his work rated "fully
satisfactory," Taken and Fetterman listed areas that needed
improvement. They noted that Cebula still needed further training
to improve his technical knowledge especially in newer equipment
and image systems.
On March 31, 1982, Taken and Fetterman reported that Cebula's
performance had declined. They lowered his rating to
"acceptable," and they stated that "for time in
position, fundamental knowledge of simple systems is below our
expectations." Moreover, they indicated that Cebula needed to
broaden his electrical skills to fit the criteria of his
position. They also noted that some customers had complained that
he was unable to fix problems in a timely manner.
Cebula's fifth performance review was completed by Taken and a
new district manager, Ravi Sharma ("Sharma"). The evaluation
dated February 11, 1983, indicated that while his performance was
acceptable, his performance was still declining. Specifically,
Taken and Sharma indicated that Cebula frequently failed to
arrive at a logical problem solution due to his troubleshooting
difficulty. Moreover, he had not mastered skills that were usual
for time and position. They suggested that Cebula attend night
classes at DeVry Institute in order to fill in his electronic
gaps. Cebula did not enroll for classes at DeVry Institute or
elsewhere. He asserts that this is because Sharma and Taken did
not answer his questions about which courses to take.
Sharma further investigated Cebula's work performance. He
consulted a field engineer and another customer service
representative who confirmed Cebula's work deficiencies. The
field engineer had observed Cebula working and described him as
"technically incompetent." Similarly, the customer service
representative reported that Cebula frequently required him to
provide back up technical assistance by telephone. He opined that
Cebula's problem was troubleshooting.
On February 18, 1983, Sharma placed Cebula on a 60-day work
improvement program. After the 60-day period, GE would decide
whether or not to fire him. Before the program could be formally
implemented, Cebula took disability leave from March 4, 1983,
until June 13, 1983, because of a hernia operation. Upon his
return from leave, Taken gave him a memorandum summarizing the
February 1983 performance appraisal and informing him that his
performance would be reviewed over the next 60 days. Cebula
disagreed with the assessment of the February meeting and refused
Sharma's request to initial his summary of that meeting. Sharma
gave Cebula the opportunity to be evaluated by another
supervisor, but he declined. Cebula has admitted that he does not
believe that Taken or Sharma are personally prejudiced against
him because of age.
While Cebula was on the work improvement program, Cebula was
cited in four "incident reports" prepared by Taken for failure to
perform adequately on customer service calls. Taken also received
during that time three letters from GE customers complaining
about Cebula's work. Taken had never received such letters before
about Cebula. Two of the customers instructed GE not to send
Cebula to their hospitals in the future.
On August 23, 1983, Cebula's final performance review indicated
that his work was unacceptable. Taken and Sharma met with him six
days later when he was told he was fired. GE's reasons for firing
Cebula were set out in a memorandum given to him:
1) Your technical performance is unacceptable;
2) You have not made any effort to improve
technically, despite repeated requests; and
3) Your attitude towards customers is to a point
where it is becoming a liability.
Cebula later discovered that Taken had tape recorded this
meeting. GE had destroyed the tape after Taken, Sharma and Daniel
L. Peters, Field Employee Relations Manager, had listened to it.
Cebula appealed his termination. GE upheld the dismissal
despite ten letters written by its customers (at time of appeal)
praising Cebula's performance. Cebula filed timely charges
against GE with the Illinois Department of Human Rights and the
Equal Employment Opportunity Commission before instituting this
Proving an ADEA Violation
Cebula alleges that GE violated his rights under the ADEA. We
have twice recently ruled on summary judgment motions in ADEA
cases and will summarize the well-established standards set forth
in those cases. See Oxman v. WLS-TV, 609 F. Supp. 1384 (N.D.Ill.
1985); Selsor v. Callaghan, 609 F. Supp. 1003 (N.D.Ill. 1985).
Section 623 of the ADEA makes it illegal for an employer "to
discharge any individual . . . because of such individual's age."
29 U.S.C. § 623(a). Cebula must prove that "but for" his age, GE
would not have fired him. See LaMontagne v. American Convenience
Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984). Cebula may
try to meet his burden in two ways, direct and indirect. He may
do so directly by presenting evidence that age was a determining
factor in GE's decision to fire him. Id. He may also do so
indirectly by using the "indirect" proof method created in
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). See LaMontagne, 750 F.2d at 1409.
Cebula appears to rely on the McDonnell-Douglas method of
proof, which has been modified for the context of ADEA
termination cases like this one. See, e.g., LaMontagne, 750 F.2d
at 1409 n. 1; Selsor v. Callaghan, 609 F. Supp. at 1006. To
establish a prima facie case of age discrimination, Cebula must
(1) He was in the protected age group, that is, age
40 to 70;
(2) He was performing his job at a level that met his
employer's legitimate expectations;
(3) He was fired; and
(4) His employer sought a replacement for him.
LaMontagne, 750 F.2d at 1409; Selsor at 1006. Once Cebula meets
this burden, the presumption is that he was dismissed because of
GE may rebut a presumption of age discrimination by
articulating a lawful reason for the discharge. This burden is
merely one of production. The burden of proof always rests on the
plaintiff. See, e.g., Selsor, at 1006. If GE articulates a
legitimate reason for firing Cebula, Cebula must prove that the
articulated reasons are pretextual. A pretext is demonstrated by
evidence showing that GE was more likely motivated by a
discriminatory reason or that its justification is not credible.
See, e.g., LaMontagne, 750 F.2d at 1409, citing Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67
L.Ed.2d 207 (1981).
Having established the substance of our analysis, we turn to
the procedural forces which shape that substance. Courts are
reluctant to grant summary judgment in employment discrimination
cases because so much turns on an employer's credibility and
hidden or subconscious motives. Thus, where a genuine issue of
employer motive or credibility lay at the heart of an ADEA case,
we denied summary judgment. See Oxman, at 1393-95. But we have
granted summary judgment to an employer where no credible
evidence called an employer's motive and intent into question.
See Selsor, 609 F. Supp. at 1007; also Kephart v. Institute of Gas
Technology, 630 F.2d 1217, 1218 (7th Cir. 1980), cert. denied
450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). As usual,
summary judgment will be granted only if GE, the moving party,
shows that no genuine issue of material fact exists. Fed.R.Civ.P.
56(c); Korf v. Ball State University, 726 F.2d 1222, 1226 (7th
Cir. 1984). We must view the evidence, as well as the reasonable
inferences it creates, in the light most favorable to Cebula. See
Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163
(7th Cir. 1984). If GE fails to carry its "strict burden," it
loses the motion. Id. But if GE
succeeds in doing so, Cebula must carry the resulting burden of
creating a genuine issue. He cannot rest on the pleadings or bald
assertions in meeting this burden. Fed.R.Civ.P. 56(e); Big O, 741
F.2d at 163.
Cebula's McDonnell-Douglas Case
The parties agree that Cebula meets three of the requirements
of the McDonnell-Douglas prima facie case. At 45 years old,
Cebula comes under the statute's protective umbrella. Secondly,
he was fired. Third, GE replaced him with a 26 year old man. The
parties disagree on whether Cebula satisfied GE's legitimate
The Seventh Circuit has emphasized that the employer's
legitimate perceptions are what count in this analysis. For
example, Kephart v. Institute of Gas Technology, 630 F.2d 1217
(7th Cir. 1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67
L.Ed.2d 383 (1981), adopted the decision of the district court to
grant summary judgment to the employer. The lower court had
framed the issue as follows:
The Age Discrimination in Employment Act, however,
was not intended as a vehicle for judicial review of
business decisions. See Havelick v. Julius Wile Sons
& Co., 445 F. Supp. 919, 926 (S.D.N.Y. 1978). The
question before the court is not whether the
company's methods were sound, or whether its
dismissal of Kephart was an error of business
judgment. The question is whether he was
discriminated against because of his age. Although an
employer may not make unreasonable expectations, and
must make the employee aware of just what his
expectations are, beyond that the court will not
inquire into the defendant's method of conducting its
business. If Kephart was not doing what his employer
wanted him to do, he was not doing his job.
630 F.2d at 1223. In Huhn v. Koehring Co., 718 F.2d 239 (7th Cir.
1983), the court relied on Kephart in again emphasizing that the
plaintiff's burden is to show that he was satisfying his
employer's legitimate expectations. 718 F.2d at 244-45.
We do not think there is a genuine issue that Cebula was not
satisfying GE's legitimate expectations. Although until 1983
Cebula's reviews had indicated that his work had been generally
satisfactory, these reviews consistently criticized aspects of
his work, especially his technical knowledge and fell below GE's
"par" of "fully satisfactory." His performance had declined even
before Sharma became his new district manager. The record
supports the final performance review which concluded that GE
found his work unacceptable. Cebula was consistently criticized
for inferior technical expertise. In Cebula's closing days, three
of GE's customers complained about his service, two of them
asking for different servicemen for the future. And Taken wrote
up four "incident reports" about Cebula, which criticized him for
inadequate performance on service calls.
Cebula has not controverted the above evidence that he did not
live up to GE's expectations. He submitted ten letters which he
had solicited from GE customers who liked his work, apparently to
disprove GE's claim that he was unsatisfactory. However, these
letters were written after Taken and Sharma decided in August
1983 to fire him. Moreover, Cebula's submission of these letters
misses the point made in Kephart that we do not sit to judge
whether GE made the right business decision in firing Cebula. We
sit only to judge whether Cebula's age determined that decision.
Cebula, like Kephart, cannot prevail on the McDonnell-Douglas
prima facie case because he
does not contradict the affidavits and depositions of
other [GE] employees stating that they thought his
work was unsatisfactory. In response, he offers only
the judgments of some who thought his work was good.
These contrary assessments of his performance do not
impeach the legitimacy of his employer's
expectations. Plaintiff does not raise a material
issue of fact on the question of the quality
of his work merely by challenging the judgment of
Kephart, 630 F.2d at 1223.
Cebula does, however, make some arguments that the above
evaluations are a ruse, and that GE's scheme was to get rid of
him and other older employees. Essentially, Cebula is arguing
that GE's "legitimate expectations" argument is pretextual,
papering over its hidden, unlawful motives. The problem with this
pretext argument is that we have held that Cebula cannot pass the
threshold hurdle of raising a genuine issue of fact for his prima
facie case. In a strict doctrinal sense, we should not even reach
the "pretext" issue, because that presupposes that Cebula had met
his McDonnell-Douglas prima facie case. Because of his failure to
do so, we must now discard the McDonnell-Douglas approach and
instead analyze Cebula's arguments under the alternate "direct"
method of proof, which considers the total circumstances to see
whether age was a determining, or "but for," factor in GE's
decision to fire Cebula. See LaMontagne, 750 F.2d at 1409. In the
final analysis, this approach does not differ much from the
pretext approach under McDonnell-Douglas. In both approaches, we
are searching the record for bits of evidence which could show
that age motivated GE or that its supposed expectations and
evaluations are not credible. 750 F.2d at 1409.
Cebula's Direct Evidence of Discrimination
Cebula has culled the following bits of evidence to piece
together his picture of why he was fired:
(1) According to Cebula's affidavit, Sharma told him,
in July 1983 "we [GE] don't want you. Don't you see
why we don't want you? Look who we are hiring — Harry
Lemke, Scott Ridgeway, and Peter Craig [all of whom
are in their twenties]. Don't you see what I am doing
to you?" Sharma denies making this statement.
(2) Several co-workers told Cebula that GE was out to
get him because of his age, and that GE had a general
plan of replacing older employees with younger ones,
in order to cut wages and benefits.
(3) Cebula claims that Sharma also told him that if
he would quit, Sharma would help him find another
job, give him good references, and get him GE
benefits. Cebula refused, and Sharma allegedly told
him to "quit or get fired."
(4) As of February 7, 1984, GE employed 56 people
between ages 20 and 39 in Cebula's area. Only 11
employees were between 40 and 60. Thus, the ratio of
"young" to "old" employees was about five to one. One
employee over 40 named Robert Wentdorf resigned when
Cebula was fired; another, Joseph Ives, was placed on
a work improvement program; and GE has hired no one
over forty in Cebula's division since 1979.
Only the first of these shreds of evidence helps Cebula's case.
We will consider this evidence in reverse order.
The so-called "statistical evidence" of paragraph (4) is "sound
and fury, signifying nothing." W. Shakespeare, Macbeth, Act V,
sc. v. The "data" in paragraph (4) is inconclusive, and any
inference that it suggests age discrimination would be
speculative and unreasonable. The fact that GE has hired no one
over 40 in Cebula's division is meaningless absent other evidence
concerning the number of applicants over forty, the
qualifications of these applicants, and the number of positions
available. Similarly, the five-to-one ratio of "young" to "old"
employees is statistically meaningless without other evidence
concerning the relative percentages of people that applied for
these positions, as well as the relative percentages in the work
force as a whole. Moreover, because Cebula's position was
entry-level, it could just as well be that older employees moved
up or into different companies. This inference, too, is
speculative. The point is that the evidence by itself points to
no one reasonable conclusion. Likewise, the resignation of Robert
Wentdorf proves nothing. All we know is that Wentdorf resigned.
No evidence describes the circumstances of his resignation.
Cebula does not even offer an
affidavit of Mr. Wentdorf. And the assertion that Joseph Ives was
placed on a work improvement program is again not probative.
There is no evidence that GE lacked good cause to do so, that it
treated comparable younger employees better, or even that Ives
was fired. In sum, the evidence in paragraph (4) adds nothing to
Sharma's ultimatum in paragraph (3) to "quit or get fired,"
coupled with some inducements to quit, also does not suggest that
Cebula's age entered into the situation. Sharma could just as
well have given the ultimatum because of Cebula's poor
performance. Such ultimatums are not uncommon and happen for a
variety of business reasons, good and bad. But this ultimatum
surely does not imply by itself that age was one of those
The comments of Cebula's co-workers in paragraph (2) are
inadmissible hearsay. Fed.R.Civ.P. 56(e) requires affidavits to
"be made on personal knowledge . . . set[ting] forth such facts
as would be admissible in evidence." Cebula has submitted no
affidavits of these co-workers. Rather, his own affidavit repeats
comments they made to him that GE was out to get older employees.
These assertions are inadmissible hearsay under Fed.R.Evid.
801(c), as they are offered to prove the truth of the matters
asserted, that is, that GE was out to get Cebula and other older
employees. Cebula is incorrect that these statements are
non-hearsay party admissions under Rule 801(d)(2). The "party
opponent" here is GE. The statements were made by lower-level GE
employees. No evidence suggests that any of these co-workers was
involved in the decision to fire Cebula or was speaking as an
"agent or servant [of GE] concerning a matter within the scope of
his agency or employment. . . ." Fed.R.Evid. 801(d)(2)(D). Thus,
these statements cannot be attributed to GE as an admission and
cannot escape the hearsay rule. See Hill v. Spiegel, Inc.,
708 F.2d 233, 237 (6th Cir. 1983).
The above evidence, considered together or separately, is thus
either irrelevant or inadmissible. The final piece of evidence we
turn to is Cebula's strongest. That is Cebula's assertion that
Sharma told him that "we don't want you," and that he should see
who GE was hiring, indicating three younger employees. We note
first that Sharma denies making this statement. We observe also
that the statement, if made, is facially ambiguous. While Sharma
might have pointed to those three as younger employees, Sharma
might have meant that the other employees were technically more
proficient than Cebula or were better trained. If a jury were to
rule for Cebula it would have to find (1) that Sharma really did
make the statement; (2) that Sharma meant what Cebula says he
meant; and (3) that Cebula's age made a difference in the
outcome, despite the powerful evidence that he was not doing his
job well enough to satisfy Sharma and others. We think it
extremely unlikely that the jury would reach all three
conclusions. And we think it impossible that a jury could do so
reasonably. First, we do not think a jury would believe that
Sharma made the statement.*fn3 However, in ruling on this summary
judgment motion, we must resolve the conflicting stories and
credibility issues in Cebula's favor. Nevertheless, even assuming
a jury could reasonably find in Cebula's favor on points (1) and
(2), we do not think it could do so on point (3).
The central issue here on summary judgment "is whether the
submissions of the parties give rise to a reasonable inference of
discriminatory motive." Parker v. Fed'l Nat'l Mtg. Ass'n.,
741 F.2d 975, 976 (7th Cir. 1984) (emphasis added). Considering the
whole record, the jury could not do so reasonably. The evidence
is overwhelming that Cebula did not perform up to GE's legitimate
expectations. We have already held that there is no genuine
factual issue about GE's dissatisfaction. We now hold that there
is no genuine issue that GE's dissatisfaction with Cebula's
performance was a "but for" or "determining factor" in his
discharge. No jury could reasonably find otherwise on the basis
of this record.
We recognize that if Sharma made the alleged statement, as we
must assume for purposes of deciding the motions before us that
he did, it becomes possible that age too was a factor in the
decision. But we do not think a jury could reasonably find, as it
must for Cebula to win, that age was a determining factor. In
general, two or more factors, or causes, can possibly be
"determining ones." Both age and poor performance could factor
into the discharge decision, such that "but for" either cause the
employee would not have been fired. This is the so-called
"mixed-motive" situation. See, e.g., LaMontagne, 750 F.2d at 1414
(age need only be a determining factor among others); Spagnuolo
v. Whirlpool Corp., 641 F.2d 1109, 1111-12 & n. 1 (4th Cir.
1981), cert. denied, 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158
(1981); Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.
1979). But even if GE's motives were mixed, the above cases make
clear that to prevail a plaintiff must show that age made a
difference in the outcome. If Cebula would have been fired anyway
because of his poor performance, he has not shown that "but for"
his age he would not have been fired, and he loses.
We think no genuine issue exists that Cebula would have been
fired regardless of his age. Age did not determine the outcome.
For five years he performed below expectations. Not only Sharma,
but other supervisors felt he was inadequate. Finally, near the
end, customers wrote complaints to GE about Cebula. GE would not
have continued to risk losing business on Cebula's account. In
sum, Cebula cannot overcome the evidence of his poor performance
and persuade a reasonable jury that age also determined GE's
decision to fire him. Accordingly, Cebula cannot succeed on the
direct method of proof, as well as the McDonnell-Douglas method.
We therefore grant GE's motion for summary judgment on the ADEA
The Illinois Eavesdropping Act
Both parties have moved for summary judgment on Count II, which
states a claim under the Illinois Eavesdropping Act,
Ill.Rev.Stat. ch. 38, ¶ 14-1 through 14-9 (1983). The Act creates
civil remedy for "eavesdropping . . . practiced contrary to" the
Act by an eavesdropper or his "principal." ¶ 14-6. A "principal"
is defined as "any person who"
(1) Knowingly employs another who illegally uses an
eavesdropping device in the course of such
(2) Knowingly derives any benefit or information
from the illegal use of an eavesdropping device by
(3) Directs another to use an eavesdropping device
illegally on his behalf.
¶ 14-1(c). It is undisputed that Taken taped the conversation in
which he fired Cebula. Assuming that Taken violated the Act, and
did so in the course of his employment, we nevertheless believe
that Cebula cannot hold GE liable as Taken's principal.
The Act is clear that one must "knowingly employ[ ] another"
who violates the Act. The record of this case is clear that no GE
supervisor knew of or directed Taken's decision to tape the
meeting. As such, we hold that GE cannot be held liable as
Taken's principal since it did not knowingly employ him to use
the tape.*fn4 Nor can it be
said that GE has "knowingly derived any benefit or information
from [Taken's] illegal use" of the tape. When Sharma found out
about the tape he reprimanded Taken, and GE destroyed the tape.
Cebula has made no showing that its contents would have helped
him or that they somehow benefitted GE. Thus, GE is likewise not
a principal under ¶ 14(1)(C)(2).
In sum, no genuine factual issue exists as to whether GE is a
principal under the Eavesdropping Act. It might be that Taken
violated the Act, and that Cebula could have sued him, but he can
no longer maintain his suit against GE for Taken's wrongdoing. As
such, we need not consider the parties' remaining arguments
concerning Count II.
We grant GE's summary judgment motion on Counts I and II and
deny Cebula's motion for summary judgment on Count II. It is so