plaintiff faced (allegedly amounting to a constructive discharge) were motivated by age discrimination.
To establish an ADEA violation, Monaco must demonstrate that he "suffered a materially adverse change in the terms or conditions of [his] employment because of [his] employer's discriminatory conduct." Spring v. Sheboygan Area School Dist., 865 F.2d 883, 885 (7th Cir. 1989) (emphasis in original).
Monaco's wages and hours were cut by a significant amount, and he alleges he was denied a week of his vacation. We cannot say as a matter of law that such employment decisions were not materially adverse ones. For purposes of this summary judgment motion, we view the wage, hour and vacation-time cuts, as well as the two allegations of failure to promote, as materially adverse employment decisions within the meaning of Spring.
Under the direct evidence method, Monaco must prove that age was a basis of the employment decision. McCarthy, 924 F.2d at 686. In other words, Monaco must show that age was a substantial factor in, i.e., a "motivating part" of, the decision. Greanias, 774 F. Supp. at 472, quoting Price Waterhouse, 490 U.S. at 250.
Age-related remarks at work do not inevitably prove that age played a part in a decision; rather, plaintiff must show that Fuddruckers actually relied on the remarks in making its decisions. McCarthy, 924 F.2d at 686. "Stray remarks in the work place . . . cannot justify requiring the employer to prove that its . . . decisions were based on legitimate criteria." Id. at 686, quoting Price Waterhouse, 490 U.S. at 277 (O'Connor, J. concurring). If a plaintiff succeeds in showing that age was a basis of an employment decision, then the defendant must prove by a preponderance of evidence that the same employment decision would have been made in the absence of any age consideration. McCarthy, 924 F.2d at 686.
"Unless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be evidence of a discriminatory" decision. Id. at 686-87. Therefore, Monaco must show a causal connection between his age and the material adverse changes. Greanias, 774 F. Supp. at 473. Monaco does maintain that the age-based comments were made by Mackiewicz during the period of time when Monaco's working conditions were changing. He also claims that age was given as the reason for some of the adverse changes by Mackiewicz. We will look at each adverse decision.
Plaintiff cannot demonstrate (and does not even allege) a causal connection between his age and the cutting of his wages. He admits that his wages were cut as a result of defendant's decision to reduce costs, as follows:
Coincident with Mackiewicz's discriminatory treatment of Plaintiff, Defendant in December 1987 or January 1988, decided to reduce costs through the use of pre-cut boxed beef, as opposed to the cutting of beef fore-quarters. This resulted in the reduction of Plaintiff's wage rate from $ 8.00 per hour to $ 5.75 per hour.
Pltf's memo. in opposition, p. 2. The fact that the decision may have been made coincident with some discriminatory comments does nothing to establish a causal link. Plaintiff's belief that everything was done to him with the purpose of forcing him to quit does not help his cause. "Having conceded that age was not a factor, the plaintiff cannot prove discrimination through either direct or indirect proof." Skagen v. Sears, Roebuck & Co., 910 F.2d 1498, 1500 (7th Cir. 1990). Without this link, plaintiff does not satisfy his burden with respect to his wage cuts.
Plaintiff's claim that his hour cuts were age-motivated does not fare much better. He claims that his hours were cut along with his wages and that no reason was given for the hour reduction. There is no showing that the several alleged comments by Mackiewicz are in any way causally related to the decision to cut his hours, let alone a substantial factor in the decision.
Plaintiff's claim of losing vacation time due to his age also fails. Plaintiff admits that the company vacation policy changed for all hourly employees, but again seems to rely on contemporaneous age-based comments. As with the wage reduction, this coincidence, without more, is not sufficient.
Monaco claims that the promotions to shift supervisor of Mary Dwyer and Kirby Dorsey were promotions that he should have received, but for his age. In each case Monaco apparently spoke to Mackiewicz concerning the reasons others were promoted and not Monaco. Regarding the Dorsey promotion, Mackiewicz did not respond to Monaco. Regarding the Dwyer promotion, Mackiewicz apparently attributed the decision to Monaco's age.
The problem facing Monaco is that these promotions were made prior to the time Mackiewicz was himself promoted to manager effective June 8, 1987.
Thus, any age-based remarks made by Mackiewicz surrounding the promotions were not related to the employment decisions. Mackiewicz was not the decisionmaker with respect to these promotions. Statements by non-decisionmakers are not sufficient under the direct method to create a genuine issue of material fact as to whether a particular decision was age-motivated. McCarthy, 924 F.2d at 686.
Thus, to the extent Monaco bases his claim on direct evidence of discrimination, this evidence is insufficient as a matter of law to show that age was a substantial factor in any employment decisions. See Greanias, 774 F. Supp. at 472. Monaco "did not establish facts from which a reasonable juror could conclude that the impermissible factor of [age] played a role" in any of the employment decisions made by Fuddruckers. McCarthy, 924 F.2d at 687.
Even if we assume that Monaco had established a prima facie case of discrimination (i.e. showing that age was a basis) under the direct method, his claim still must fail. Under the direct method, if the plaintiff states a prima facie case, the burden then falls on the defendant to prove by a preponderance of the evidence that it would have made the same employment decision even without taking age into account. McCarthy, 924 F.2d at 686. We would conclude, after reading the facts with all reasonable inferences in favor of Monaco, that Fuddruckers would have made the same decisions without considering age. The decision to change from hanging beef to boxed beef was made at the central management level. It is uncontested that this change resulted in a shortening of the time required for a butcher to process beef. Charles Redepenning's affidavit, explaining that the decision to change from hanging to boxed beef included a decision to cut wages and hours for all Fuddruckers skilled butchers, is uncontroverted. Similarly, the change in the vacation policy was done at the central management level and applied to all hourly employees. Plaintiff's only evidence contrary to this conclusion are the age-based comments, which are insufficient to raise a genuine issue of material fact on this issue.
The direct evidence of discrimination proffered by Monaco is insufficient to avoid summary judgment. We now look to the indirect method.
B. Indirect Method
Prima Facie Case
Under the indirect method, and based on a claim of constructive discharge, a plaintiff must first establish a prima facie case of age discrimination. To do this a plaintiff must show that
(1) he is within the protected class (persons aged 40-70 years); (2) he had been performing his job satisfactorily; (3) he was constructively discharged; and (4) he was replaced by a younger individual.
Farr v. Continental White Cap, Inc., 762 F. Supp. 814, 817 (N.D. Ill. 1991), vacated on other grounds, 774 F. Supp. 522. If the plaintiff can establish a prima facie case, then the burden of persuasion shifts to defendant to articulate legitimate reasons for its actions. Id. at 817. If the defendant is successful, the burden of persuasion again falls on the plaintiff to show that the reasons proffered by defendant are purely pretextual, by showing either that defendant was more likely than not motivated by discriminatory considerations or that the defendant's proffered reasons are incredible. Id. at 817.
Monaco has been at least 40 years old since August 1986 and is therefore within the protected class. It is uncontested that Monaco had been performing his job satisfactorily. Thus, these first two elements of the prima facie case are satisfied.
There might be a question whether Monaco was replaced by a younger individual. However, when Monaco left Fuddruckers it appears that his duties were assumed by Bertram, an employee substantially younger than Monaco. Therefore, we find that plaintiff has also satisfied this element of the prima facie case. See Farr, 726 F. Supp. at 817.
Fuddrucker's major argument is that plaintiff has failed to show adequately that he was constructively discharged. Rather, according to defendant, Monaco voluntarily and unreasonably quit his job at Fuddruckers. Thus, whether Monaco was constructively discharged is the last element of the prima facie case which remains to be analyzed.
A constructive discharge occurs when working conditions are "so difficult and unpleasant that a reasonable person in [the employee's] position would have felt compelled to [leave]." Farr, 762 F. Supp. at 817, quoting Scott v. Oce Industries, Inc., 536 F. Supp. 141, 148 (N.D. Ill. 1982). Also, an "employee must seek legal redress while remaining in his or her job unless confronted with an 'aggravated situation' beyond 'ordinary' discrimination." Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir. 1989), quoting Bailey v. Binyon, 583 F. Supp. 923, 929 (N.D. Ill. 1984).
Monaco claims that his working conditions were such that he felt compelled to leave and, moreover, that he was faced with an "aggravated situation" beyond "ordinary" discrimination. It is undisputed that Monaco did not seek legal redress while on the job.
We confine our analysis of the constructive discharge issue to the age-based comments made by Mackiewicz, the failure to promote, and the cuts in hours, wages and vacation time. This focus is appropriate in light of plaintiff's own characterizations of the reasons he resigned. Monaco indicates that the age-based comments contributed to his intolerable working conditions, but he makes clear that it was the loss of wages and benefits that caused him to quit.
The occurrences of verbal harassment by Mackiewicz amounted to about four times over a six-month period when Mackiewicz said that Monaco was old and that he should resign. "An employee may not be unreasonably sensitive to his working environment." Brooms, 881 F.2d at 423, quoting Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981). These age-based comments, while extremely inappropriate, do not rise to the level of an "aggravated situation" beyond "ordinary" discrimination. See Brooms, 881 F.2d 412; Bailey, 583 F. Supp. 923. Therefore, the alleged comments do not support plaintiff's constructive discharge claim.
One attribute of the indirect test is that it can be employed with absolutely no evidence of age discrimination. La Montagne, 750 F.2d at 1409-10. However, if we know that age was not a factor in a particular decision, the decision cannot be used to show constructive discharge based on age. Skagen, 910 F.2d at 1500.
Skagen was a case where it was stipulated that age did not play a role in the decision. Here we have what amounts to a concession that age played no role in the decision to cut Monaco's wages. As seen above, plaintiff admitted the discriminatory treatment was coincident with defendant's decision to reduce costs. Supra, at 8. If the decision to reduce costs resulted in Monaco's wage reduction, then plaintiff's wage reduction cannot be used as a basis for constructive discharge.
Even if we assume Monaco's wage cut can be used to show constructive discharge, the result will ultimately be the same. Monaco's wage cut was accompanied by a substantial cut in hours, which, by itself, had a great effect on Monaco's income. These cuts can be likened to a demotion, which has been found to suffice at the prima facie level in the constructive discharge context. Farr, 762 F. Supp. at 817. Despite plaintiff's admissions regarding the reasons for the way Fuddruckers treated him, at the summary judgment stage, we will assume that a reasonable person would have felt compelled to resign faced with the economic situation in which Monaco was placed. Therefore, we can assume that Monaco was constructively discharged, based on his loss of benefits, wages and hours. Monaco has stated a prima facie case and the burden shifts to defendant.
In response to plaintiff's prima facie case, defendant has articulated lawful, non-discriminatory reasons for its employment actions. Defendant maintains that the decisions to cut hours, wages and vacation were companywide decisions and that Mackiewicz had nothing to do with these decisions except the responsibility to enforce them. To support these claims Fuddruckers has submitted many documents and the affidavit of Charles Redepenning.
The legitimate reasons given by defendant for its actions, coupled with the supporting documentation, seem reasonable. We find the defendant has met its burden of offering legitimate reasons for its actions.
The burden then shifts back to plaintiff to demonstrate that these reasons are merely pretextual or that they are incredible. Plaintiff has clearly failed to meet this burden. Monaco does not even claim that the business reasons advanced by Fuddruckers are a pretext. Although he may not think he was treated fairly, "evidence that an employee was treated unfairly is not as such sufficient to show pretext." McCoy v. WGN Television, 758 F. Supp. 1231, 1237 (N.D. Ill. 1990). Similarly, Monaco has not attempted to show that defendant's proffered reasons are incredible, and we have found, as a matter of law, that they are not. "A party opposing summary judgment cannot rest on the pleadings and must affirmatively set forth facts that show that there is a genuine issue of material fact." McCarthy, 924 F.2d at 687.
The only evidence of discrimination from which we could possibly infer pretext are the age-based comments by Mackiewicz. But as seen above in the direct analysis, there is an insufficient causal link between these comments and the actions taken by defendant to show discrimination directly. Analogously, these comments are an inadequate showing of pretext. Monaco has failed to show that discriminatory reasons more likely than not motivated Fuddruckers, and has not demonstrated that the reasons proffered are incredible ones.
There is no genuine issue of material fact, using direct evidence of discrimination, as to whether plaintiff was discriminated against in violation of the ADEA. Also, plaintiff has failed to raise a genuine issue sufficient to rebut defendant's proffered lawful reasons for its actions, and thus has not met its burden under the indirect method. Therefore, we grant defendant's motion for summary judgment.
JAMES B. MORAN
Chief Judge, United States District Court
April 17, 1992.