The opinion of the court was delivered by: Reinhard, District Judge.
MEMORANDUM OPINION AND ORDER
On June 9, 1999, plaintiff Louis Owens filed a one-count
complaint against Top Transportation Services, Inc. ("Top"), and
Sundstrand Corporation ("Sundstrand"), alleging defendants
violated the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. § 621 et seq., when they discharged him in 1997.
Currently pending are both defendants' motions for summary
judgment, filed pursuant to Fed.R.Civ.P. 56. Jurisdiction is
proper under 28 U.S.C. § 1331. Venue is proper as a substantial
part of the events giving rise to the claim occurred in this
district and division. See id. § 1391(b)(2).
Sundstrand's aerospace and aircraft products are transported
to various destinations by a contracted carrier service.
(LR56.1(a) ¶ 2)*fn1 Over the years it has used various
contracted carrier services, the last one being Top. Pursuant to
its agreement with Top, Sundstrand accepted responsibility for
making sure Top drivers complied with the U.S. Department of
Transportation Motor Carrier Safety regulations ("DOT
regulations") and other applicable federal and state laws and
regulations. (Id ¶ 19)
During the relevant time period, Owens (whose date of birth is
December 29, 1928) was formally employed by Top as an
over-the-road truck driver and for approximately twelve years
was assigned exclusively to haul Sundstrand's products. (Compl.
¶¶ 6, 10) From mid-1984 through the end of 1996, Owens received
his daily directions from Russ Ziegert, a dispatcher for
Sundstrand. Ziegert voluntarily resigned at the end of 1996, and
Mel Wilson (whose date of birth is December 25, 1942), a
tractor-trailer driver, replaced Ziegert. (LR56.1(a) ¶ 30)
Wilson reported to David Westervelt (whose date of birth is July
23, 1946), Sundstrand's manager of telecommunications/network.
(Id. ¶ 33)
During the twelve years he was assigned to drive trucks for
Sundstrand, Owens was assigned to the "Milwaukee-Auburn run,"
which included two trips to Auburn, Alabama, and was paid for
the number of miles assigned to this route. (Id. ¶¶ 20-21,
34-35) At the end of each week, Owens completed a weekly pay
sheet that logged the daily miles, which he submitted to Ziegert
(and then to Wilson, after Ziegert retired) after completing his
weekly route. (Id. ¶ 26)
It is undisputed that during the twelve years he was assigned
to this route, Owens falsified his daily driver log by recording
less than the number of miles he had actually driven. (Id. ¶
49) He did this so as to appear to be in compliance with the DOT
regulations. Ziegert knew of the falsification and condoned it.
In fact, Ziegert had been responsible for mapping but the
Milwaukee-Auburn run. It was not possible for a single driver to
drive this route, get to the first location by the required time
as scheduled by Sundstrand, and comply with the DOT regulations.
(LR56.1(b)(3)(B) ¶¶ 10-11)*fn2 It is also undisputed Owens
submitted a Fuel Tax and Mileage Report, in which he accurately
recorded the number of miles he had driven. Sundstrand used this
report to calculate the amount it owed the company from which
Sundstrand leased the trucks.
When Wilson became the dispatcher, he told Westervelt he
believed one of the drivers was falsifying his daily log.
(LR56.1(a) ¶ 60) Westervelt ordered an audit of all the daily
logs from November and December of 1996. (Id. ¶ 63) Wilson
also recommended that Owens' route be converted to a team
assignment, meaning two drivers would be used to complete the
run. (Id. ¶ 61) Westervelt approved Wilson's recommendation.
The audit results revealed Owens' falsification, and the results
were published in a report entitled, "Corporate Transportation
Services Audit Report." (Id. ¶ 65; Sundstrand Exh. F)
Westervelt received a preliminary copy of this report in
February 1997. (LR56.1(a) ¶ 67) The report concluded that Owens
was violating DOT regulations. (Id.) On February 20, 1997,
Westervelt met with Ernest Reichert, Top's Vice President, to
discuss the results of the preliminary audit. (Id. ¶ 68)
During the meeting, Westervelt stated Sundstrand would no longer
accept Owens' services, and Reichert concurred. (Id. ¶ 69)
Owens was thereafter discharged from Top. (Id. ¶ 74-75)
Summary judgment shall be rendered if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with any affidavits, show there is no genuine issue of
material fact and that the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202
Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669 (7th
Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1603, 149
L.Ed.2d 469 (2001). A genuine issue of fact exists only when a
reasonable jury could find for the nonmoving party based on the
record as a whole. Bekker, 229 F.3d at 669. The court must
draw all reasonable inferences in favor of the nonmoving party,
and it may not make credibility determinations or weigh the
evidence. Reeves v. Sanderson Plumbing Prod., Inc.,
530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000); EEOC v.
Sears, Roebuck & Co., 233 F.3d 432, 436 (7th Cir. 2000).
Because the primary purpose of summary judgment is to isolate
and dispose of factually unsupported claims, the nonmovant may
not rest on the pleadings but must respond, with affidavits or
otherwise, pointing to specific facts showing there is a genuine
issue for trial. Oest v. Illinois Dep't of Corr.,
240 F.3d 605, 610 (7th Cir. 2001). A complete failure of proof concerning
an essential element of a case necessarily renders all other
facts immaterial. Id.
Here, Owens concedes he has no direct evidence of age
discrimination. (Resp., p. 1) Thus, the court will analyze his
ADEA claim under the McDonnell Douglas burden-shifting
approach. Accordingly, Owens must first establish a prima facie
case of age discrimination by demonstrating: (1) he is over the
age of 40; (2) he performed his job according to his employer's
legitimate expectations; (3) he suffered an adverse employment
action; and (4) similarly situated, non-protected employees were
treated more favorably. Reeves, 120 S.Ct. at 2106; Gordon v.
United Airlines, Inc., 246 F.3d 878, 886 (7th Cir. 2001). The
first and third elements of the McDonnell Douglas analysis are
not at issue here.
Defendants argue Owens has not established the second and
fourth elements of a prima facie case. The issue of whether
Owens' job performance was satisfactory focuses on some of the
same circumstances as must be scrutinized with respect to the
issue of pretext. See Gordon, at 886. Thus, the court will
comprehensively discuss his performance in the context of
pretext. As for the fourth element, Sundstrand states the truck
driver who replaced Owens was nine years, eleven months younger
than Owens. (Memo., p. 9) Because the age difference is less
than ten years, Sundstrand argues the replacement was not
substantially younger than Owens so as to satisfy the fourth
element. See Fisher v. Wayne Dalton Corp., 139 F.3d 1137, 1141
(7th Cir. 1998) ("substantially younger" means at least a
10-year age difference). The court rejects this argument. The
McDonnell Douglas analysis is not rigid, mechanized, or
ritualistic. Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1090
(7th Cir. 2000). The replacement's age is close enough to Owens'
that the court considers him to have established the fourth
However, Owens falters at the pretext stage. A plaintiff can
prove pretext by presenting evidence from which a reasonable
factfinder could conclude the employer's proffered reason is
unworthy of credence, raising the inference that the real reason
is discriminatory. Essex v. United Parcel Serv., Inc.,
111 F.3d 1304, 1310 (7th Cir. 1997). The question is whether the
employer honestly believed its proffered reason for discharge.
Id. That the ...