benefits would be if he were to work until the age of 68. Rawson had not known before that time how long Whitchurch intended to work for Apache and says that he did not discuss Whitchurch's question (or the answer) with Burgess. Two weeks after learning of Whitchurch's plans to work until he was 68, Apache removed Whitchurch as plant manager. Based on this timing, a rational fact-finder could conclude that Apache's claim of insubordination was a pretext for age discrimination.
Whitchurch casts sufficient doubt upon Apache's proffered reason for removal to make summary judgment on Count I inappropriate. Whitchurch's testimony concerning the lack of a specific instruction to install the new laminator in the old building addresses Apache's assertions that Whitchurch was removed because he refused to install the new equipment and satisfies the final element of his prima facie case. Whitchurch also sufficiently addresses the issue of pretext by suggesting that, after learning of his desire to work five more years until he was 68, Apache fired him to escape paying his salary and pension benefits.
If believed, Whitchurch's testimony establishes that without warning, Apache removed an experienced hard-nosed supervisor--one who, just months before, had been rated the best plant manager at Apache, and who, just weeks before, alerted Apache as to his intentions to work for another five years--for not following instructions which he never specifically received, and then coincidentally replaced him with a man more than twenty years younger. Given these facts, a jury could rationally infer that age played a role in the decision to discharge Whitchurch.
Of course, the evidence presented at trial may result in a different conclusion. The case will turn on the credibility of the parties and their witnesses. Credibility determinations are best left to the finder of fact. Courtney v. Biosound, 42 F.3d 414, 424 (7th Cir. 1994). Whitchurch's evidence is sufficient to create a genuine issue of material fact as to Apache's proffered reason for removal. As a result, the defendants' motion for summary judgment in favor of Apache must be denied as to Count I, the claim of age discrimination.
ADA Claim Against Apache (Count II)
As a supplement to his age discrimination claim, Whitchurch contends that Apache discharged him because of a disability in violation of the ADA. As with his age discrimination claim, Whitchurch may prove discrimination based upon disability either by direct evidence or by using the McDonnell Douglas burden shifting method. DeLuca v. Winer Industries, Inc., 53 F.3d 793, 797 (7th Cir. 1995). Whitchurch elects to proceed under the burden-shifting method. In order to establish a prima facie case of disability discrimination under the ADA using the McDonnell Douglas method, a plaintiff must demonstrate that he was: (1) a member of the protected class; (2) performing his job to his employer's legitimate expectations; (3) subjected to a materially adverse employment action; and (4) replaced by an employee not in the protected class. Id.; cf. Palmer v. Circuit Court of Cook County, Social Service Department, 905 F. Supp. 499, 506 (N.D. Ill. 1995) (elements are that the employee was a disabled person within the meaning of the ADA; was able to perform the essential functions of the job; and was subjected to an adverse employment action because of her or his disability).
Whitchurch satisfies the requirement of a prima facie case under the ADA, at least for summary judgment purposes. Apache concedes that Whitchurch is a member of the protected class. Whitchurch's replacement was not in the protected class. Apache contends that Whitchurch was not performing to his employer's legitimate expectations and that he was not subject to any adverse employment action. As discussed above, the Court finds that Whitchurch raises an issue of fact on these issues. Accordingly, Whitchurch has made out a prima facie case of disability discrimination. See generally Pilditch, 3 F.3d at 1117 (elements of a prima facie indirect evidence case are relatively simple, and are designed to allow the plaintiff to survive summary judgment even in the absence of direct evidence) (citations omitted).
Apache has articulated a legitimate nondiscriminatory reason for its actions, i.e., insubordination, so the burden shifts to Whitchurch to present evidence that this reason is simply a pretext for discrimination based on his disability. Whitchurch's evidence on this point fails to demonstrate a material question of fact. To show discriminatory intent, Whitchurch points only to a single statement made "on an occasion before an operation," when Burgess asked if Whitchurch would be able to walk without his walker after the surgery. Defs.' Mem., Ex. G. Whitchurch's last operation occurred almost a year prior to the date he was removed. Whitchurch dep. at 72. Even if viewed in the most favorable light, this remark is distant in time from the date of Whitchurch's termination and demonstrates nothing more than an employer's attempt to foresee accommodations that might be necessary in the future. Standing alone, this evidence could not sustain a jury verdict in favor of Whitchurch.
We do note that Apache offered Whitchurch a severance package which purported to include disability insurance payouts, and encouraged Whitchurch to accept the package even though Burgess was uncertain as to whether Whitchurch qualified for disability. The unsolicited nature of this "offer" of disability payments may be relevant to show that an employee's disability loomed large in the employer's mind. See Wagner v. Kester Solder Co., 1995 U.S. Dist. LEXIS 9213, 1995 WL 399484 at *9-10 (N.D. Ill. June 28, 1995). Without other evidence as to disability discrimination, however, the court cannot find a triable issue of fact as to whether Whitchurch was terminated because of a disability. A mere scintilla of evidence will not suffice to defeat a motion for summary judgment; there must be evidence that would enable a reasonable jury to find for the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. at 250. Accordingly, we grant summary judgment in favor of Apache on Count II, the ADA claim.
The Court grants the defendants' motion for summary judgment [34-1] in favor of defendant Burgess on all claims. The Court also grants summary judgment in favor of Apache on Count II, the ADA claim. The motion is denied as to Count I, the ADEA cause of action against Apache. A Final Pretrial Order consistent with this opinion will be due on March 24, 1996. The parties are directed to appear for a status hearing on March 5, 1996 for the express purpose of setting a firm trial date for the issues that remain in this case.
United States District Judge
February 21, 1996