The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Jones, born on May 9, 1954, claims that he lost his
job with defendant Lucent Technologies, Inc. ("Lucent") due to age
discrimination. Mr. Jones alleges that he relied on statements by his
supervisor, Umesh Joshi, that a low performance rating would not be used
for any purpose, and as a result did not challenge the rating when it was
given to him. Mr. Jones alleges that his performance rating and Mr.
Joshi's statements were the result of age bias and constituted common law
fraud. Lucent and Mr. Jones seek summary judgment. I grant Lucent's
motion and deny Mr. Jones' motion for the reasons stated below.
Mr. Jones claims that direct evidence of discrimination entitles him to
summary judgment. Mr. Jones's evidence can be summarized as follows. In
mid-2000, Mr. Joshi began supervising Mr. Jones. When Mr. Joshi asked Mr.
Jones about his goals for the next two to five years, Mr. Jones replied
that he hoped to retire at the end of four years. At the end of 2000, Mr.
Jones was placed
into a Band 4 performance rating by Mr. Joshi. During Mr. Jones'
performance review, in response to Mr. Jones' concerns, Mr. Joshi said,
"Maybe I should explain. You're in the middle. I'm on the conference
calls. I know the contribution you make. You're not on any list. This is
just for my personal use." Mr. Jones did not challenge his performance
rating, though he was aware of Lucent's process for doing so. On February
15, 2001, Mr. Jones was notified that because of his Band 4 rating, he
was being placed "at-risk" for termination in an upcoming downsizing by
Lucent. In April 2001, Mr. Jones was terminated.
Nothing in this summary suggests that Mr. Joshi placed Mr. Jones into a
Band 4 performance rating because of age discriminatory reasons. Mr.
Jones' motion for summary judgment on this count is denied, and he cannot
survive summary judgment on this evidence.
While Mr. Jones claims to be proceeding under the direct method of
proving age discrimination, the indirect method would not help him. To
establish a prima facie claim under the indirect method, Mr. Jones must
show that (1) he is a member of a protected class; (2) that he was
meeting the legitimate business expectations of his employer; (3) that he
suffered an adverse employment action; and (4) that other
similarly-situated employees, not in the protected class, were treated
more favorably. Biolchini v. General Elec. Co., 167 F.3d 1151,
1153-54 (7th Cir. 1999) (citing McDonnell-Douglas
v. Green, 411 U.S. 792, 802 (1973)). Lucent argues that
Mr. Jones cannot establish the second and fourth prongs of this
test, and I agree.
The fact that Mr. Jones was given a performance rating in Band 4 shows
that he was not meeting Lucent's legitimate business expectations. See,
e.g., Haywood v. Lucent Techs., Inc., 323 F.3d 524, 530-31 (7th
Cir. 2003). Mr. Jones received such an unfavorable rating not just in
2000 but also in previous years. His statements that the rating was
unwarranted are not sufficient to establish that he was, in fact, meeting
Lucent's legitimate business expectations. Id.
Mr. Jones also cannot establish that younger, similarly-situated
employees at Lucent were treated more favorably. Mr. Jones admits that no
one younger than he was, who was also rated in Bands 4 or 5, was not
terminated. While Mr. Jones argues that some of his job duties were given
to a younger employee after his termination, that is not the test
dictated by the law. See, e.g., Pitasi v. Gartner Group, Inc.,
184 F.3d 709, 716 (7th Cir. 1999). Mr. Jones' age discrimination claim
also fails under the indirect method. Lucent's motion for summary
judgment on Count I is granted.
Mr. Jones' common law fraud claim is that Mr. Joshi's statement during
his 2000 performance review that "this is just for my personal use"
misled him, resulting in his failure to challenge
his performance rating and his ultimate termination. Even if Mr.
Joshi's statement was false, in order to establish a claim of fraud, Mr.
Jones must have been defrauded of something. Mr. Jones was an at-will
employee, who could have been terminated at any time. See Stromberger
v. 3M Co., 990 F.2d 974, 976-77 (7th Cir. 1993). He makes no
showing that "but for" the statement by Mr. Joshi, he would not have been
terminated. Id. at 978. While Mr. Jones argues that he would
have challenged his performance rating had Mr. Joshi not made his
statement, Mr. Jones does not show that this would have had any effect.
In fact, Mr. Jones says that at least one other employee challenged her
performance rating, to no effect. Mr. Jones has not shown that he was
injured even if Mr. Joshi's statements were false. Mr. Jones' motion for
summary judgment on Count II is denied, and Lucent's motion for summary
judgment on Count II is granted.
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