to believe a supervisor instead of an employee and discipline
that employee accordingly. Even if this reliance was wrong, there
is no evidence that it was discriminatory or dishonest. An
employer's honest belief in an erroneous decision cannot support
a claim of discrimination. Kariotis v. Navistar Int'l Transp.
Corp., 131 F.3d 672, 676 (7th Cir. 1997). Accordingly, her
discriminatory discipline claim must fail.
Ms. Wade also alleges that she was denied a promotion due to
her age. To meet her prima facie case, Ms. Wade must establish
that: (1) she was a member of the protected class; (2) she
applied and was qualified for the position sought; (3) she was
rejected for the position; and (4) someone younger than she was
given the position. Sample v. Aldi, Inc., 61 F.3d 544, 548 (7th
Ms. Wade is over forty so within the ambit of the ADEA's
protection, and, although Lerner contends that Ms. Wade never
"applied" for a manager position, I must accept her sworn
testimony that she did so — in which case, she was rejected since
she was never made a manager. In addition, four employees
significantly younger than she were promoted to managerial
positions. Lerner argues that Ms. Wade does not meet her prima
facie case because she was not qualified to become a manager.
However, a candidate need only be minimally qualified, not
possess superior qualifications; furthermore, Lerner admits that
it does not employ a definitive list of required qualifications
for promotion decisions. The Seventh Circuit eschews a mechanical
application of the burden shifting approach, so I proceed to
consider Ms. Wade's qualifications in the context of whether she
meets her burden of showing pretext. Fuka, 82 F.3d at 1404.
Lerner argues that Ms. Wade was not promoted for the following
legitimate, nondiscriminatory reasons: (1) she was disciplined
for falsifying her time records, (2) others were more qualified
than she, specifically in operating a cash register or
demonstrating aptitude to operate a cash register; and (3) she
had a record of attendance problems. With respect to Ms. Wade's
SRM for falsifying time, Ms. Wade alleges she first requested a
promotion in October; because the timecard incident did not occur
until late November, it cannot be considered as a factor against
her promotion prior to that time. Lerner also claims that Ms.
Wade lacked the ability or aptitude to operate a cash register, a
supposed prerequisite for a managerial position. Ms. Wade
contends that she specifically requested but was denied the
opportunity to receive any substantial training using the new
cash registers. Her only exposure was a few minutes during which
she did not have the opportunity to learn or demonstrate her
aptitude. Lerner's promotion policy is admittedly subjective and
left to the discretion of the employee's immediate supervisors,
as is the decision as to which employees to train in new skills.
Lerner controlled the means by which its employees could
"qualify" for managerial positions, and a fact finder could
therefore reasonably believe that Ms. Wade was purposefully
denied the opportunity to learn the new cash register system
because of an impermissible bias or attitude about older workers,
e.g. that they lack the skills to learn new technologies.
Lerner's final reason for the failure to promote Ms. Wade due
to attendance problems is more persuasive. Ms. Wade admits that
she has been written up for tardiness on three occasions, and
since she fails to show that those promoted also had attendance
issues, she cannot refute this legitimate, nondiscriminatory
reason. In fact, Lerner claims that none of those promoted during
the time period in question had any disciplinary issues, and the
plaintiff — despite full discovery — offers no evidence to the
contrary. Lerner has a large number of employees and potential
managerial candidates. I cannot sit as a "superpersonnel
department" and dictate that Lerner may not favor employees with
a clean attendance record over those with a record of tardiness
for promotion opportunities. Jackson v. E.J. Brach Corporation,
176 F.3d 971 (7th Cir. 1999). Ms. Wade has failed to meet her
burden with respect to her claims of discriminatory discipline
and failure to promote.
Under the ADEA, it is unlawful for an employer to discharge or
otherwise discriminate against an employee because that employee
has brought a charge under the ADEA. See 29 U.S.C. § 623(d).
Retaliation cases are analyzed under the McDonnell Douglas
framework. See Alexander v. Gerhardt Enter., Inc., 40 F.3d 187,
195 (7th Cir. 1994). To demonstrate a prima facie case of
retaliation, Ms. Allen must establish: (1) that she engaged in
statutorily protected activity; (2) that she suffered an adverse
action; and (3) a causal link between the protected activity and
the adverse action. McClendon v. Indiana Sugars, Inc.,
108 F.3d 789, 796 (7th Cir. 1997). If Lerner articulates a legitimate,
nondiscriminatory reason for Ms. Wade's dismissal, the burden
shifts back to Ms. Wade to show that Lerner's proffered reasons
are pretextual and its actual reason discriminatory or
retaliatory. Id. at 797.
Ms. Wade alleges Lerner reduced her hours, then concocted
grounds to terminate her in retaliation for filing a
discrimination claim. Ms. Wade has met the first two factors of
her prima facie case because she engaged in a protected activity,
the filing of a discrimination complaint, and suffered adverse
employment consequences after she filed the complaint. Ms. Wade
claims that her supervisor, Ms. Stovall — who was involved in the
incidents leading to her discharge — made frequent references to
her discrimination claim and told her on several occasions
between December of 1996 and April of 1997 that Lerner wanted to
terminate her because of it but did not yet have a reason to do
so. Ms. Wade filed her original complaint with the Illinois Human
Rights Commission on December 5, 1996, and alleges her hours
decreased shortly thereafter. Ms. Wade filed her second complaint
on April 23, 1997, and the events which the defendant claims
caused her termination occurred on April 26, 1997. Ms. Wade thus
argues that the causal link is established by Ms. Stovall's
statements about her discrimination claim and the close temporal
proximity between her complaint and the adverse consequences
The time line between Ms. Wade's initial complaint, coupled
with the statements of Ms. Stovall, her direct supervisor, are
sufficient to establish the necessary causal link to her claim of
reduced hours. Lerner, whose employees are not guaranteed a
specific number hours, offers a satisfactory explanation why Ms.
Wade's hours decreased in the short term: the holiday season rush
was over. In addition, Lerner has provided evidence that Ms.
Wade's average hours for the period before her complaint was
comparable to her hours after the complaint.
The causal link to her termination is much more tenuous.
Although Ms. Wade filed her second discrimination claim the day
before the events which ultimately led to her termination, she
offers no evidence that Lerner was actually aware of her
retaliation claim, so it cannot form the basis for the causal
link. Ms. Wade was fired nearly five months after she filed her
first EEOC complaint, see Hughes v. Derwinski, 967 F.2d 1168
(7th Cir. 1992) (four month gap between filing of complaint and
disciplinary letter not sufficiently related to show
retaliation); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499,
511 (7th Cir. 1998) (five months between EEOC charge and
subsequent discharge too remote to show a causal link). Ms. Wade
is therefore left with the statements of Ms. Stovall, who she
claims informed her of the unnamed conspiracy against her;
however, the decision to fire Ms. Wade was not
made by Ms. Stovall or any of the individuals claimed to harbor
retaliatory motives. See Fortino v. Quasar Co., 950 F.2d 389,
395 (7th Cir. 1991) (statement by supervisor outside
decisionmaking chain irrelevant to proving discrimination).
Although Ms. Wade argues otherwise, it is clear from the record
that Ms. Ruggiero, Lerner's Human Resource Manager in New York,
made the final decision to terminate Ms. Wade after a full
investigation. It is true that Ms. Stovall's statements were
among the information upon which Ms. Ruggiero relied, but she was
not the sole source or final word on the matter. Any of the nine
accounts would be a sufficient basis for Ms. Wade's termination.
Ms. Wade does not allege that all involved were acting in
retaliation, nor does her speculation about her other
supervisors' motives amount to evidence sufficient to have
tainted the decision-making process. Claims that these
supervisors disliked her are unaccompanied by an illegal reason
for that dislike, i.e. because she was "old" or filed
discrimination charges. Ms. Wade is therefore unable to tie Ms.
Stovall's statements to the ultimate decision-maker, Ms.
Ruggiero. In any event, Lerner offers a compelling,
nondiscriminatory reason for Ms. Wade's termination: Ms.
Ruggiero's honest belief, based on the consistent, eyewitness
accounts of five employees and four customers, that Ms. Wade was
rude to customers and verbally and physically abusive to Lerner
management. Despite shifting burdens of production in
discrimination cases, "[t]he ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff."
Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct.
2742, 125 L.Ed.2d 407 (1993) (citation omitted). Ms. Wade has
failed to meet this burden with respect to either of her claims
Summary judgment is GRANTED on all counts in favor of the
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