Chiaramonte takes issue with FBG's statement that Elting decided to "keep" him as the top engineer at FBG. Since Elting did not interview any other Vice President of Engineering candidates, Chiaramonte argues, no such "decision" was made. Yet, this argument is flawed. Since Elting believed Chiaramonte to be qualified for the Vice President of Engineering position, interviewing additional applicants would be futile; Chiaramonte was the best person for the job at that time and Elting made an affirmative act of choosing to promote Chiaramonte to Vice President of Engineering at FBG.
This chronology makes suspect Chiaramonte's claim that the person that hired him at fifty-two, when he was well into the protected class, and elected to retain and appoint Chiaramonte to the highest engineering post when he was fifty-seven, "had suddenly developed an aversion to older people" less than two years later, when Elting terminated Chiaramonte's position. Rand v. CF Indus., Inc., 42 F.3d 1139, 1147 (7th Cir. 1994). Thus, a strong presumption and inference of nondiscrimination exists.
2. Rebutting the Presumption of Nondiscrimination
Chiaramonte's attempt at rebutting the inference of nondiscrimination consists of two distinct arguments. First, Chiaramonte argues that Elting was not the sole decision-maker, and that people other than Elting, who also took part in the decision, made statements from which a reasonable juror could infer that age played a part in Chiaramonte's termination. Second, Chiaramonte contends that FBG's reasons for terminating him directly conflict with additional evidence, giving rise to a genuine issue of material facts which, in turn, requires a trial.
a. The Decision-Maker
With regard to Chiaramonte's first argument, the facts show that Elting alone had the hapless task of determining who would be terminated. The three exhibits cited by Chiaramonte (the Elting deposition excerpts, statements by an accountant, Debbie Lunn, and Ernst & Young documents) do nothing to dispute this fact.
Chiaramonte argues that, because Elting forwarded the list of twelve soon-to-be-laid-off employees to FBG and L&P corporate and legal staffs, and discussed his determinations with L&P's Senior Vice President, Elting was not alone in making the decision to terminate Chiaramonte. However, Elting testified that he had the sole power to compile the list and make the terminations, but allowed the company "higher-ups" to review the list anyway. Elting slated twelve employees for termination, and Elting alone terminated all twelve of the employees. Neither the corporate and legal staffs nor the Senior Vice President commented on, criticized, or amended Elting's list.
Elting stated in his deposition that he was uncertain whether he discussed "any of the reductions in management" with Singer prior to the actual termination. Chiaramonte argues that the statement shows that Singer was involved in the decision-making. However, Elting's acknowledgement of uncertainty is not contrary to his testimony that he alone made the termination decisions. Although Elting and Singer may have discussed "reductions in management" prior to Chiaramonte's termination, there is no evidence that the two discussed the reasons for terminating Chiaramonte (or any of the eleven other terminated management-level employees, including Singer's daughter). Moreover, Elting's "uncertainty" is clarified by Singer's unequivocal testimony that no such conversation ever took place. Both Elting and Singer testified that Elting had the sole authority to terminate employees and was the sole decision-maker in all twelve of the "second wave" management position terminations, which included Chiaramonte's layoff. Nothing Chiaramonte has submitted refutes this testimony. Thus, the court finds no factual dispute as to whether Elting alone made the decision to terminate Chiaramonte.
As such, any post-termination comments Singer may have made for Chiaramonte's termination are irrelevant. Singer's alleged statement, "Well, there's age," is not the well-grounded "smoking gun" admission perceived by Chiaramonte. Singer denies making the statement, and Chiaramonte is unable to corroborate his own allegation. Indeed, when cross-examined, Chiaramonte expressed uncertainty as to whether Singer made that actual statement. Instead, Chiaramonte stated under oath that Singer told him "age had to be a factor . . . but I don't know." The context of the statement shows that Singer was merely speculating as to why Elting made the decision to fire Chiaramonte. Yet, even assuming that Singer made such a statement, the statement cannot be considered an admission by FBG. Post-termination statements made by non-decision-makers have no bearing on the instant age discrimination query -- whether the decision-maker, Elting, chose to terminate Chiaramonte because of his age. See Tennes v. Massachusetts Dep't of Revenue, 944 F.2d 372, 378 (7th Cir. 1991). Post-termination statements made by non-decision-makers are not probative of the employer's pre-termination mental state, do not affect the decision to terminate, and are immaterial in age discrimination cases. Id.
Even if Singer were a decision-maker, that arguable confession of a legal wrong does not necessarily create legal liability. Dranchak v. Akzo Nobel Inc., 88 F.3d 457, 1996 U.S. App. LEXIS 16014, *12 (7th Cir. 1996). "The ADEA forbids an employer to make age the basis for adverse action, but it creates a remedy only if the forbidden consideration altered the employer's decision." Id. "If the employer knows of a legitimate and independently sufficient reason for discharge [in addition to the plaintiff's age], and relies on this reason at the time of the discharge, then age did not lead to any adverse action." Id.
Chiaramonte also points to evidence that a consulting firm, Ernst & Young, was "actively advising" FBG to change Chiaramonte's function to "exist outside the formal engineering structure and . . . report directly to the General Manager." According to Chiaramonte, this advice shows that Elting was not the sole decision-maker on hiring and firing. However, Chiaramonte's own words refute his contention. According to Chiaramonte, Ernst & Young "advised" Elting and his superiors; such advice, by definition, has no binding effect. Additionally, the record reveals that Elting later refused to take the advice of Ernst & Young and, in March 1992, terminated Chiaramonte's position instead of retaining Chiaramonte but limiting his functions to exist outside FBG's formal engineering structure.
Further, a statement made by Debbie Lunn, a "cost accountant," that "we are going to get rid of all you old people" is of no relevance here. Lunn denies making the statement. Yet, notwithstanding the denial, and assuming the statement was actually made, that statement is not proof of discrimination by FBG's decision-maker. Lunn played no role in Elting's decision to eliminate Chiaramonte's position, nor did she ever discuss with Elting Chiaramonte's termination before it occurred. Lunn attended no company meetings at which layoffs of the twelve managers were discussed, and was neither asked for nor provided with any information, evaluation, recommendation or other comment about Chiaramonte or his value to FBG. Lunn was unaware of Elting's decision to terminate Chiaramonte until the layoff was announced. Simply put, Lunn took no part in Chiaramonte's demise.
b. Conflicting Evidence
Chiaramonte next contends that statements made by Elting at an Illinois Department of Human Rights fact-finding conference, certain financial reports of FBG, and a release form FBG required Chiaramonte to sign after his termination all provide evidence from which a reasonable juror could infer that FBG "lied" about its reasons for terminating Chiaramonte. As the Seventh Circuit stated in Shager v. UpJohn, 913 F.2d 398 (7th Cir. 1990):
The question . . . is only whether . . . [the plaintiff] produced evidence from which a rational factfinder could infer that the company lied . . . . If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one, such as age, may rationally be drawn. This is the common sense behind McDonnell Douglas . . . . The point is only that if the inference of improper motive can be drawn, there must be a trial. Id. (emphasis in original).