United States District Court, Central District of Illinois, Springfield Division
July 30, 2002
JACK E. WAGNER, JR., PLAINTIFF,
ACCESS CASH INTERNATIONAL, INC., DEFENDANT.
The opinion of the court was delivered by: Richard Mills, District Judge.
In law, it is good policy to never plead what you need not,
lest you oblige yourself to prove what you can not.
Abraham Lincoln, Letter to Usher F. Linder (Feb. 20, 1848),
in II COMPLETE WORKS OF ABRAHAM LINCOLN, 3 (John G. Nicolay
and Johns Hay, eds., New York: Francis D. Tandy Co., 1894).
Access Cash International, Inc. ("Access Cash"), is a
Minnesota based company engaging in the business of providing
self-service financial products, including ATM's, transaction
process, and management. Jack E. Wagner, Jr., began working for
Access Cash as a commissioned salesperson on October 15, 1997.
As part of his compensation package, Wagner received bi-weekly
advances of $1,500.00 against his commissions from Access Cash.
Between October 15, 1997, and February 15, 1999, Access Cash
advanced to Wagner $54,150.00. However, during this same period
of time, Wagner only earned $17,466.66 in commissions which were
credited against his advances.
On February 15, 1999, Access Cash terminated Wagner's
employment. Wagner was 46 years of age at the time. Thereafter,
Access Cash hired D.J. Schultz to replace Wagner. Schultz was 23
years of age at the time he was hired by Access Cash.
On October 31, 2000, Wagner filed a two Count Complaint in
this Court against Access Cash. Count I alleges that Access Cash
discriminated against Wagner by firing him because of his age in
violation of the Age Discrimination in Employment Act (ADEA).
29 U.S.C. § 621 et seq. Count II alleges that Access Cash
violated the Consolidated Omnibus Budget Reconciliation Act
(COBRA), 29 U.S.C. § 1161(a) et seq., by failing to provide
notice to Wagner of his right to continue his health insurance
coverage upon his termination. Access Cash has now moved,
pursuant to Federal Rule of Civil Procedure 56(c), for
summary judgment on both of Wagner's claims against it.
II. STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.Pro.
56(c); see Ruiz-Rivera v. Moyer, 70 F.3d 498, 500-01 (7th Cir.
1995). The moving party has the burden of providing proper
documentary evidence to show the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of
material fact exists when "there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In determining whether a genuine issue of material fact
exists, the Court must consider the evidence in the light most
favorable to the nonmoving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once
the moving party has met its burden, the opposing party must
come forward with specific evidence, not mere allegations or
denials of the pleadings, which demonstrates that there is a
genuine issue for trial. Gracia v. Volvo Europa Truck, N.V.,
112 F.3d 291, 294 (7th Cir. 1997).
A. ADEA CLAIM
In order for Wagner to establish that Access Cash violated the
ADEA, he must show that his age was a determining factor in
Access Cash's decision to fire him. Wolf v. Buss (America),
Inc., 77 F.3d 914, 919 (7th Cir. 1996); Smith v. Great Am.
Restaurants, Inc., 969 F.2d 430, 434 (7th Cir. 1992). Wagner
need not prove that his age was the sole reason for Access
Cash's decision; rather, he need only to show that "but for"
Access Cash's motive to discriminate against him based upon his
age, he would not have been subjected to an adverse employment
action. Wolf, 77 F.3d at 919; La Montagne v. Am. Convenience
Prods., Inc., 750 F.2d 1405, 1409 (7th Cir. 1984). Wagner
may prove age discrimination in one of two different
ways. [H]e may try to meet h[is] burden head on by
presenting direct or circumstantial evidence that age
was the determining factor in h[is] discharge. Or, as
is more common, he may utilize the indirect,
burden-shifting method of proof for Title VII cases
originally set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973), and later adapted to age discrimination
claims under the ADEA.
Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th
Cir. 1994) (citations and quotations omitted); Anderson v.
Stauffer Chem. Co., 965 F.2d 397, 400 (7th Cir. 1992).
Contrary to his assertions otherwise, Wagner has presented no
direct evidence that Access Cash fired him because of his age.
"To prove age discrimination using direct evidence, an ADEA
plaintiff must establish `that he would not have been discharged
`but for' his employer's motive to discriminate against him
because of his age.'" Mills v. First Fed. Sav. & Loan Ass'n of
Belvidere, 83 F.3d 833, 840 (7th Cir. 1996), quoting Karazanos
v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th Cir.
1991); Anderson, 965 F.2d at 400. To prove the required "but
Wagner could have relied upon any of the following four types of
1) direct evidence that age was a determining factor,
such as discriminatory statements uttered by the
2) circumstantial evidence that age was a determining
factor, such as a statistical imbalance in the
3) direct evidence that the employer's proffered
justification is pretextual, such as a contradiction
between the employer's proffered justification at
trial and documentary evidence from the time of the
4) circumstantial evidence that the employer's
proffered justification is pretextual, such as
evidence that the proffered justification is not a
genuine job requirement.
Giacoletto v. Amax Zinc Co., Inc., 954 F.2d 424, 425-26 (7th
Cir. 1992); Perfetti v. First Nat'l Bank of Chicago,
950 F.2d 449, 450-51 (7th Cir. 1991).
Wagner has tendered no such evidence. In fact, the only
evidence presented by Wagner which arguably could constitute
direct evidence is his affidavit in which he opines that Access
Cash fired him because of his age. However, "conclusory
allegations and self-serving affidavits, without support in the
record, do not create a triable issue of fact." Hall v. Bodine
Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002).
Therefore, in order for Wagner to proceed on his ADEA claim,
he must rely upon the burden-shifting analysis set forth by the
United States Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See
Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir.
2002) (holding that, if an employee presents no direct evidence
of discrimination, his ADEA claim must proceed under the
burden-shifting analysis of McDonnell Douglas). To establish a
prima facie ADEA claim under McDonnell Douglas, Wagner must
"present enough evidence to create a triable issue of fact on
each of the following elements: 1) he is a member of the class
protected by the statute; 2) he reasonably performed to his
employer's expectations; 3) he was terminated; and 4) the
position remained open or he was replaced by someone
substantially younger." Lesch v. Crown Cork & Seal Co.,
282 F.3d 467, 472 (7th Cir. 2002), citing Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617 (7th Cir. 2000).
Once an ADEA plaintiff has established a prima facie case, a
rebuttable presumption of discrimination is created. Wolf, 77
F.3d at 919; Oxman v. WLS-TV, 846 F.2d 448, 453 (7th Cir.
1988). "The burden of production then shifts to the employer to
articulate a legitimate nondiscriminatory reason for the
employee's termination." Wolf, 77 F.3d at 919 (footnote
omitted); Weihaupt v. Am. Med. Ass'n, 874 F.2d 419, 426 (7th
Cir. 1989). If the employer is able to overcome the presumption,
the burden returns to the plaintiff to show by a preponderance
of the evidence that the employer's reasons are pretextual.
Wolf 77 F.3d at 919; Sarsha v. Sears, Roebuck & Co.,
3 F.3d 1035, 1039 (7th Cir. 1993).
Pretext "means a dishonest explanation, a lie rather than an
oddity or an error." Kulumani v. Blue Cross Blue Shield Ass'n,
224 F.3d 681, 685 (7th Cir. 2000). The United States Court of
Appeals for the Seventh Circuit has stated that "[p]retext may
be established directly with evidence that [the employer] was
more likely than not motivated by a discriminatory reason, or
indirectly by evidence that the employer's explanation is not
credible." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.
1995). If an ADEA plaintiff chooses to establish pretext
indirectly, the plaintiff may do so "by introducing evidence
that demonstrates that (1) the
proffered reasons are factually baseless; (2) the proffered
reasons were not the actual motivation for the discharge; or (3)
the proffered reasons were insufficient to motivate the
discharge." Wolf, 77 F.3d at 919; Weihaupt, 874 F.2d at 428.
Finally, an ADEA plaintiff may not simply show that the
employer acted incorrectly; rather, the plaintiff must show that
his employer did not believe the reasons it offered for firing
him. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368,
373 (7th Cir. 1992). The Court should "not sit as a
super-personnel department that reexamines an entity's business
decisions. The question is not whether the [employer] exercised
prudent business judgment, but whether [the employer] has come
forward to refute the articulated, legitimate reasons for his
discharge." Dale v. Chicago Tribune Co., 797 F.2d 458, 464
(7th Cir. 1986) (internal citations omitted); Giannopoulos v.
Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir.
Although the Court recognizes that Wagner's burden of
establishing the four elements of a prima facie case is not
onerous but is generally "quite easy to meet," Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct.
1089, 67 L.Ed.2d 207 (1981); Kahn v. United States Secretary of
Labor, 64 F.3d 271, 277 (7th Cir. 1995), the Court finds that
he has failed to establish the second element of his prima
facie case. See Coco v. Elmwood Care, Inc., 128 F.3d 1177,
1178 (7th Cir. 1997) (holding that "the prima facie case under
McDonnell Douglas must be established and not merely
incanted."). Specifically, Wagner has failed to create a triable
issue of fact regarding whether he reasonably performed his job
duties to Access Cash's expectations.
The uncontroverted evidence shows that, in the two years in
which it employed Wagner as a salesman, it lost over $35,000.00
due to Wagner's failure to generate sufficient sales to enable
his commissions to exceed his base pay as an advance on his
commissions. Moreover, in its letter to Wagner notifying him
that he was being discharged, Brandon Almich, Access Cash's
sales manager, informed Wagner that he was being fired "due to
your failure to meet sales objectives established in the Fall
conversation with Jon Thomas." Wagner has offered no evidence,
circumstantial or otherwise, to challenge this reason as being
the basis upon which he was terminated.
Furthermore, the fact that, in the months immediately
preceding his termination, Wagner's sales figures increased does
not create a triable issue sufficient to defeat Access Cash's
summary judgment motion. An employer is under no duty to balance
an employee's favorable reviews and job performance against his
unfavorable reviews and poor job performance in determining
whether the employee is meeting the employer's legitimate
employment expectations. Peele, 288 F.3d at 328-29. On the
contrary, an employer may terminate an at-will employee for a
good reason, a bad reason, or for no reason at all; it just may
not terminate an employee for a discriminatory reason. See Ward
v. Post-Tribune Publ'g, Inc., 1998 WL 516786, * 2,
151 F.3d 1035 (7th Cir. 1998) (opining that the plaintiff "was an at-will
employee, meaning he could be fired for any reason (or none at
all) so long as the reason was not discriminatory.").
Finally, Wagner's assertion that, if given the opportunity to
do so, he will present live testimony at trial which will
support his ADEA claim is wholly inadequate. As the Seventh
Circuit has explained, summary judgment is the "` put up or shut
up' moment in a lawsuit, when a party must show what evidence it
has that would convince a trier of fact to accept its version of
events." Schacht v. Wisconsin Dep't of
Corrections, 175 F.3d 497, 503-04 (7th Cir. 1999). If it is
true that Wagner could have tendered witnesses to the Court to
substantiate his ADEA claim, he should have offered these
witnesses' depositions and/or affidavits in response to Access
Cash's motion for summary judgment. He cannot, in the face of a
summary judgment motion, assume that a trial will be held at
which time he may prove his case.
Accordingly, the Court finds that no genuine issues of
material fact exist which would preclude it from entering
summary judgment in Access Cash's favor. Moreover, because
Wagner has presented no direct evidence that Access Cash
discriminated against him because of his age and because he has
failed to establish the second element necessary to establishing
a prima facie case for a violation of the ADEA under the
McDonnell-Douglas burden-shifting method, the Court finds that
Access Cash is entitled to judgment as a matter of law.
Therefore, summary judgment is entered in Access Cash's favor on
Wagner's ADEA claim against it.
B. COBRA CLAIM
Likewise, the Court finds that Access Cash is entitled to
summary judgment on Wagner's COBRA claim. As one district court
COBRA requires the plan sponsor of each group health
plan to provide each qualified beneficiary, who would
lose coverage under the plan as a result of a
qualifying event, an option to continue coverage
under the plan. 29 U.S.C. § 1161. Upon occurrence of
a qualifying event, "the employer of an employee
under a plan must notify the administrator . . .
within 30 days . . . of the date of the qualifying
event[.]" 29 U.S.C. § 1166(a)(2). The administrator
then must notify, within 14 days of receiving the
notification from the employer, any qualified
beneficiary of his COBRA rights.
29 U.S.C. § 1166(a)(4)(A) & (c). Any administrator who fails to
meet this notification requirement "may in the
court's discretion be personally liable to such
participant or beneficiary in the amount of up to
$100 a day from the date of such failure . . ., and
the court may in its discretion order such other
relief as it deems proper." 29 U.S.C. § 1132(c)(1).
Fenner v. Favorite Brand Int'l, Inc., 25 F. Supp.2d 870, 873
In the case sub judice, Wagner claims that he never received
the requisite COBRA notice from Access Cash regarding the option
to continue his health care benefits, and thus, summary judgment
is inappropriate. However, this argument is inapposite because
"employers are [not] required to ensure that plan participants
actually receive a [COBRA] notice." Degruise v. Sprint Corp.,
279 F.3d 393, 336 (5th Cir. 2002). Rather, "`employers are
required to operate in good faith compliance with a reasonable
interpretation' of what adequate notice entails." Id., quoting
Kidder v. H & B Marine, Inc., 734 F. Supp. 724, 730 n. 6
Nevertheless, it is unclear whether Access Cash ever sent the
requisite notice. It is clear from the evidence presented that
Access Cash prepared a COBRA notice on February 22, 1999, but
Access Cash has not offered any evidence (such as a mail log or
an affidavit from someone in the mail room) that the notice was
ever sent to Wagner. Wagner merely offers a conclusory denial —
without any factual support — that the notice was ever sent, but
because Access Cash has not offered any evidence that the notice
was, in fact, sent, a genuine issue of material fact exists on
Nonetheless, the Court believes that Access Cash is entitled
to summary judgment on Count II of Wagner's Complaint. Contrary
to Wagner's implied assertion in his Complaint, his cause of
action for Access Cash's alleged failure to provide him with a
COBRA notice arises under 29 U.S.C. § 1132, i.e., ERISA's
civil enforcement provision. In order for ERISA's civil
enforcement provision to be applicable, the plan at issue must
be governed by ERISA. The Seventh Circuit has explained that, in
order for a plan to qualify as an ERISA plan, five elements must
(1) a plan, fund, or program, (2) established or
maintained, (3) by an employer or by an employee
organization, or by both, (4) for the purpose of
providing medical, surgical, hospital care, sickness,
accident, disability, death, unemployment or vacation
benefits, apprenticeship or other training programs,
day care centers, scholarship funds, prepaid legal
services or severance benefits, (5) to participants
or their beneficiaries.
Postma v. Paul Revere Life Ins. Co., 223 F.3d 533, 537 (7th
Cir. 2000), citing Ed Miniat, Inc. v. Globe Life Ins. Group,
Inc., 805 F.2d 732, 738 (7th Cir. 1986).
Here, Wagner has offered no evidence to establish that his
health insurance plan qualified as an ERISA plan and, thus, that
he was entitled to receive a COBRA notice upon his
termination.*fn2 Furthermore, Wagner has offered no evidence
(even assuming that the plan was governed by ERISA) that Access
Cash was the plan administrator and, therefore, that it was the
party with the duty to send him the COBRA notice. But see
Presley v. Blue Cross-Blue Shield of Alabama, 744 F. Supp. 1051,
1059 (N.D.Ala. 1990) (stating that the employer, rather than the
claims' administrator, would have had the COBRA notification
duty, either as the designated administrator or as the plan
sponsor, if the employee had been covered under the plan).
Accordingly, the Court finds that Access Cash is entitled to
summary judgment on Wagner's COBRA claim.
Ergo, Defendant's Motion for Summary Judgment is ALLOWED.
Accordingly, summary judgment is hereby entered in favor of
Defendant and against Plaintiff on both Counts of Plaintiffs