United States District Court, N.D. Illinois
May 26, 2004.
DENNIS SHEA, Plaintiff,
LOVEJOY, INC., an Illinois Corporation, Defendant
The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge
MEMORANDUM OPINION AND ORDER*fn1
On January 22, 2003, Dennis Shea filed a three-count complaint against
the defendant, Lovejoy Inc., seeking relief under the Age Discrimination
and Employment Act ("ADEA"), 29 U.S.C. § 623 et seq. (Count I); the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(a) (Count
II); and the Illinois Wage Act ("IWA" or "Wage Act"), 820 ILCS 5/140 et
seq. (Count III), invoking the Court's supplemental jurisdiction under
28 U.S.C. § 1367(a) for that state law claim. The defendant has filed a
motion for summary judgment on all three counts. For the reasons that
follow, the Court grants the defendant's motion for summary judgment on
Counts I and II. With all federal claims having been dismissed without
trial, the Court declines to exercise supplemental jurisdiction over the
state law claim in Count III. See 28 U.S.C. § 1361 (c)(3); Bean v.
Wisconsin Bell, Inc., ___ F.3d ___, No. 03-1983, 2004 WL 877570, * 4 (7th
Cir. Apr. 26, 2004). I.
Summary judgment is proper if the record shows that there is no genuine
issue as to any material fact, and that the moving parties are entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue for
trial exists only when "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If the evidence is merely colorable, or
is not significantly probative, summary judgment may be granted. Id. at
249-50; see also Flip Side Productions, Inc. v. Jam Productions, Ltd.,
843 F.2d 1024, 1032 (7th Cir.), cert. denied, 488 U.S. 909 (1988). In
deciding a motion for summary judgment, the Court must view all evidence
in the light most favorable to the nonmoving party, Valley Liquors, Inc.
v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied,
484 U.S. 977 (1987), and must draw all reasonable inferences in the
nonmovant's favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir. 1990).
When a material fact or a set of facts yields competing, but
reasonable, inferences, then there is a genuine issue that precludes
summary judgment. The non-moving party's burden is to identify facts that
are both material and genuinely disputed. Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986) To be material, a fact must be outcome
determinative under the substantive law governing the motion. Insolia v.
Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A "genuine issue"
exists when the party opposing the motion for summary judgment serves and
files, pursuant to local Rule 56.1, a concise statement outlining the
material facts that require denial of summary judgment, supported by
citations to the evidentiary materials that support those denials (e.g.,
affidavits, depositions, answers to interrogatories, admissions etc.).
Fed.R.Civ.P. 56(c). Although the party seeking summary judgment bears the
initial burden of proving that there is no genuine issue of material fact, Celotex, 477 U.S. at 323, the non-moving party cannot rely
upon the pleadings alone, but must use the evidentiary tools outlined
above to identify the material facts that show there is a genuine issue
for trial. Id. at 324; Insolia, 216 F.3d at 598.
The following material facts are undisputed. These facts support the
entry of summary judgment in defendants' favor on Counts I and II of
A. The Parties & Personnel.
The plaintiff, Dennis Shea was born on January 6, 1944 (Defendant's
Rule 56.1 Statement of Undisputed Facts ("Def.'s 56.1 St." ¶ 3.
Lovejoy, Inc., is an Illinois corporation which manufactures power
transmission products (Id. ¶ 4). On June 4, 1997, Lovejoy offered
plaintiff a position as National Sales Engineer responsible for Original
Equipment Manufacturer ("OEM") customer accounts (Id., ¶ 14). Plaintiff
was 53 years old when Lovejoy offered him the job in 1998 (Id. ¶ 15).
The plaintiff's job responsibilities included providing technical support
for Lovejoy's nationwide sales force, and selling the full range of
Lovejoy products to major OEM accounts (Def.'s 56.1 St. ¶ 19).
Jim Minton, Vice President of Sales, and Ellen Grossberg, Vice
President of Human Resources, interviewed and hired plaintiff for this
position at Lovejoy (Def.'s 56.1 St., ¶ 14). Jim Minton was born on
December 13, 1940, and is three years older than plaintiff (Id. ¶ 21).
At the time of his hire, Mr. Minton was plaintiff's immediate supervisor
(Id. ¶ 20). As a result of a management reorganization in October, 2000, Chuck
Brannen assumed the position of OEM Sales Manager, and became plaintiff's
immediate supervisor (Id. ¶ 62). Mr. Brannen was born on January 6,
1944, and is exactly the same age as plaintiff (Id. ¶ 63), Prior to his
promotion to OEM Sales Manager, Mr. Brannen held the same position as
plaintiff, National Sales Engineer (Id. ¶ 64).
As a further result of the October 2000 reorganization of management,
Doug Durham assumed the position of North American Sales Director, and
became the immediate supervisor of Brannen. Mr. Durham was born on April
15, 1954 (Id. ¶ 65), and is ten years younger than plaintiff.
Consequently, as of October 2000, plaintiff reported to Mr. Brannen, who
reported to Mr. Durham, who reported to Mr. Minton (Id. ¶ 66).*fn3
B. Plaintiff's Medical Condition.
As a child, plaintiff contracted polio and, as a result, walks with a
limp. Since the age of 16, he has worn a brace on his left leg, but he
has not had any other treatment for polio (Def.'s 56.1 St. ¶ 5).
Plaintiff's childhood polio never restricted his employment; he never had
any medical restrictions for his employment; and he never needed an
accommodation to perform a job (Id. ¶ 6). Plaintiff's childhood polio
also does not impede or restrict his ability to travel. Indeed, plaintiff
regularly traveled in his job with Lovejoy and he travels to his vacation
home in Ireland each summer (Def.'s 56.1 So. ¶ 7). Plaintiff owns and
operates his own sailboat, is able to walk long distances, and regularly
climbs stairs (Id. ¶ 8). Plaintiff drives a car and does not use a
handicapped sticker (Id. at ¶ 9). Plaintiff's leg brace only restricts him from certain
recreational activities such as golfing, jogging and bowling (Id. at ¶
10). The plaintiff admits that his limp does not affect his job
performance or any life function (Id. at ¶ 11).
C. The 1998 Performance Review.
Plaintiff received a performance review in August 1998 for the period
of June 23, 1997 to June 23, 1998 (the "1998 review") (Def.'s 56.1 St.,
¶ 28), which was prepared by Mr. Minton (Id., ¶ 29). Plaintiff's overall
performance rating in the 1998 review was 7 on a 12-point scale, which
corresponds to the low end of the "above average" category (Id., ¶ 30).
As a result of the 1998 review, plaintiff received a 4.5 percent raise in
base salary (Id., ¶ 31). The 1998 review established goals for plaintiff
to accomplish in the following year, including being a major part of
Lovejoy's efforts to implement a customer contact management software
program (Id., ¶ 32). The plaintiff testified that he believes the 1998
review was a fair and accurate assessment of his performance and that it
was not the product of discrimination by Mr. Minton (Id., ¶ 33).
D. The 1999 Performance Review.
Plaintiff received a performance review for the period of June 23, 1998
to June 23, 1999 (the "1999 Review") (Def.'s 56.1 St., ¶ 34). As was
true in 1998, Mr. Minton prepared Plaintiff's 1999 review (Id., ¶ 35).
Plaintiff's overall performance rating in the 1999 review again was a 7
on a 12-point scale, which corresponds to the low end of the "above
average" category (Id., ¶ 36). As a result of the 1999 Review, plaintiff
received a 4.0 percent increase in his base salary (Id., ¶ 37). In the
1999 Review, Mr. Minton criticized plaintiff for not adequately servicing
his accounts and for only promoting two o f Lovejoy's six product lines
(Id., ¶ 38). Mr. Minton also criticized plaintiff for poor interactions
with other Lovejoy personnel who perform work for his accounts, and for
failing "to reach out and become more proactive in being an OEM account leader by
bringing opportunities to light so that others can learn from them"
(Id., ¶¶ 39-40). In particular, Mr. Minton criticized plaintiff for
failing to communicate well with Ed Zdanowski, Lovejoy's Quality Control
Manager, stating "I see no pro-activeness on Dennis's part to correct
this" (Id., ¶ 41).
The 1999 Review included performance goals for plaintiff for the
following year. During 2000, plaintiff was expected to increase his sales
by at least 12.5 percent, despite the fact that plaintiff lost the John
Deere-Augusta account (Def.'s 56.1 St., ¶ 42). It is standard practice
at Lovejoy for a sales representative to be required to meet increased
sales goals, despite the loss of accounts (Id., ¶ 43). Although
plaintiff testified that he disagreed with some criticisms of his
performance, he admits that the 1999 Review was not the product of
discrimination by Mr. Minton (Id. ¶ 44).
E. The Plaintiff's 2000 Performance Review.
Mr. Minton prepared a performance review of plaintiff for the period of
June 23, 1999 to June 23, 2000 (the "2000 Review") (Def.'s 56.1 St., ¶
45-46). In this review, plaintiff received an overall performance rating
of 3.5 on a 12-point scale, putting him on the borderline of "below
average" and the low point of "average" (Id., ¶ 47). The 2000 Review
form states that a 3 rating is "below average," meaning that the
employee's "job performance skills need to be developed toward higher
standards of performance which are expected for this position . . . [and]
[a] development plan should . . . be established to encourage an
increased level of performance and a change of rating within 12 months"
(Id., ¶ 48).
The Plaintiff's sales for 2000 were down from 1999, due in part to the
loss of the John Deere-Augusta account (Def.'s 56.1 St., ¶ 49). In
the 2000 Review, Mr. Minton again criticized plaintiff for not promoting the full line of Lovejoy products, stating that
plaintiff "has not stepped up to get other Lovejoy products into his
accounts despite making this a priority goal for the year 2000" (Id., ¶
50). Plaintiff admits that he failed to meet Mr. Minton's expectations
that he sell Lovejoy's entire product line (Id., ¶ 51). In the 2000
Review, Mr. Minton criticized plaintiff for failing to promote the Rosta
line of products for application at his OEM accounts, stating, "Dennis
has shown no effort to get it [Rosta] promoted in his area" (Id., ¶
Mr. Minton further criticized Plaintiff's interactions with other
Lovejoy personnel, stating that plaintiff "is reluctant to `make things
happen' at Lovejoy[,]" and he is not "being proactive to make sure it
gets done" (Id., ¶ 53). Mr. Minton criticized Plaintiff's lack of
initiative in his position, stating: "Dennis should be our OEM leader,
but he is not" (Id., ¶ 54). Mr. Minton also expressed concerns related
to Plaintiff's work volume, stating that Plaintiff's "account
responsibility is very light," and yet, he has not been "motivated to
request additional work or to become a leader" (Id., ¶ 55). Finally,
Mr. Minton criticized plaintiff for failing (a) to be a leader in the
customer relationship management software program, which Minton stated,
"has not happened"; and (b) to address his poor relationship with Ed
Zdanowski, stating that there "continues to be an irritation between the
two" and there has been "no proactiveness on Dennis's part to correct
this" (Id., ¶¶ 56-57). Mr. Minton concluded that plaintiff had attained
none of the four goals set in his 1999 review (Id. ¶ 59).
Plaintiff admits that he failed to meet Mr. Minton's expectations that
he share his expertise regarding Lovejoy products and applications with
other Lovejoy sales representatives, and that he input information regarding his customers and account activity into a
company-wide customer relations management software program, Prevail
(Def.'s 56.1 St. ¶ 58). Moreover, although plaintiff disagrees with some
of Mr. Minton's criticisms of his performance, plaintiff admits that he
does not believe the 2000 performance review was motivated by
discrimination (Id. ¶ 60). In the 2000 review, Plaintiff's goals for
2001 largely mirrored those of the prior year, with a focus on expanding
his efforts to promote the full line of Lovejoy products and on utilizing
Prevail to become more organized in his sales approach and communicate
better with others at Lovejoy (Id., at ¶ 60).
F. Plaintiff's 2001 Performance Review.
Plaintiff received a performance review for the period of June 23, 2000
to May 25, 2001 (the "2001 Review") (Def.'s 56.1 St. ¶ 68). As a result
of the October 2000 reorganization, Mr. Brannen rather than Mr. Minton
prepared Plaintiff's 2001 review. However, Mr. Durham and Mr. Minton
also reviewed Plaintiff's performance, provided input to Mr. Brannen with
respect to the 2001 Review, and concurred with the performance
evaluation, comments and rating prepared by Mr. Brannen (Id., ¶ 69). In
the 2001 review, plaintiff received an overall performance rating of 3 on
the 12 point scale (Id., ¶ 70) compared to the 3.5 rating he had
received the prior year from Mr. Minton.
The 2001 Review noted that Plaintiff's sales in 2001 were down 12.5
percent from his 2000 sales (Def.'s 56.1 St., ¶ 71). Mr. Brannen
criticized plaintiff for poor communication with other employees,
stating: "Dennis needs to start sharing his knowledge, successes and
failures with our inside personnel" (Id., ¶ 72). Plaintiff also
criticized for his poor initiative, stating that plaintiff "ha[d] been
reluctant to ask for additional assignments" (Id., ¶ 73). In the 2001
Review, Plaintiff's performance on customer accounts was criticized; the
review stated that Lovejoy has "been caught unaware in a number of cases over the last year [and plaintiff] . . .
didn't exhibit interest in establishing a supplier communications program
with Caterpillar-Aurora" (Id. ¶ 74). Mr. Brannen further criticized
Plaintiff's "spotty" usage of Prevail, stating that "[f]ull utilization
of Prevail scheduling, activity reporting, and `to do' items must be
started," and that, "this employee needs to become better acquainted with
the Prevail system to enhance his organizational skills," And, plaintiff
was again criticized for not sharing information with fellow employees
(Id., ¶ 76), or for selling the full range of Lovejoy's products (Id.,
Plaintiff admits his Prevail usage was "spotty" (Def.'s 56.1 St., ¶
75), Many of the criticisms cited in the 2001 performance review were the
same criticisms that Minton had cited in prior reviews.
Following the 2001 Review, Mr. Brannen met or conferred with plaintiff
on a weekly basis to assess Plaintiff's progress in specific performance
areas. For example, each week, Mr. Brannen reviewed with plaintiff
whether he had scheduled appointments with clients for the upcoming two
weeks, entered customer data into Prevail, and prepared the prior week's
activity report (Def.'s 56.1 St., ¶ 80). Commencing on June 4, 2001,
Mr. Brannen maintained a performance matrix that tracked Plaintiff's
weekly performance in his sales activities, communications with clients
and co-workers, and his use of Prevail (the "Performance Matrix") (Id.,
¶ 81). The defendant asserts that the Performance Matrix shows that
plaintiff "in general, was not adequately scheduling appointments with
clients, was not communicating properly with clients and co-workers, and
was not regularly entering customer and sales activity data into Prevail
(Id., ¶ 82). This assertion is not disputed by any evidence in the
record, and it accurately reflects the perception of Lovejoy management
at the relevant time (PL's Resp. ¶ 82; Def.'s Ex. 8). During June and July 2001, Mr. Brannen accompanied plaintiff on several
sales meetings with Lovejoy customers (Def.'s 56.1 St., ¶ 83). After
accompanying plaintiff on those meetings, Mr. Brannen concluded that
plaintiff was not successfully selling the full range of Lovejoy
products, and in many cases was not even attempting to do so (Id., ¶
84). Other management personnel also had expressed concerns about
plaintiff's job performance. In early 2001, Dick Deible, Lovejoy's Product
Manager responsible for torsional products, had expressed his opinion to
senior management at Lovejoy that plaintiff did not have sufficient
familiarity with Lovejoy's products or customers (Id., ¶ 85). Mr. Deible
also told senior Lovejoy management that plaintiff had some
responsibility for the loss of the work from Caterpiller-Aurora and John
Deere-Augusta because he failed to timely learn of their plans to change
suppliers (Id., ¶ 86). Mr. Durham became concerned with Plaintiff's job
performance in 2000 and 2001 because plaintiff could not answer questions
regarding key contacts in engineering, product development and other
departments at major OEM customers for which he was responsible (Id., ¶
In late July 2001, Mr. Brannen concluded that plaintiff had failed to
improve his job performance. Specifically, Mr. Brannen concluded that
plaintiff was not successfully selling the full range of Lovejoy
products; was not properly or fully utilizing the Prevail system; was not
effectively communicating with co-workers and customers; and was not well
organized in his sales approach and dealings with Lovejoy clients (Def.'s
56.1 St., ¶ 88).*fn5 In July 2001, Mr. Brannen recommended to Ms.
Grossberg (who had participated in hiring plaintiff in 1997) and Mr.
Durham that Plaintiff's employment be terminated (Id., ¶ 89). Mr. Durham
and Ms. Grossberg concurred with Brannen's recommendation (Id., ¶ 90). Mr. Brannen, Mr. Durham and Ms. Grossberg
based their decision to terminate Plaintiff's employment on his continued
poor performance (Id., ¶ 91).
On Friday, July 27, 2001, Mr. Brannen met with plaintiff, reviewed the
Performance Matrix, and told plaintiff that his performance was deficient
(Def.'s 56.1 St., ¶ 92). Plaintiff testified that "it was obvious that
[Mr. Brannen] was unhappy" and plaintiff suspected that he might be
terminated (Id.). On Monday, July 30, 2001, Mr. Brannen, Mr. Grossberg,
and Mr. Mortenson met with plaintiff and informed him that his employment
with Lovejoy was being terminated (Id., ¶ 93). Mr. Mortenson attended
Plaintiff's termination meeting as department head in place of Mr. Durham
who was not at Lovejoy's office that day (Id., ¶ 94). Following
Plaintiff's termination meeting and in accordance with Lovejoy's
established practice, Mr. Brannen prepared a memorandum setting forth
Plaintiff's performance deficiencies that caused his termination, which
he sent to the other managers at the termination meeting (Id., ¶ 95).
Mr. Brannen assumed responsibility for the customer accounts previously
assigned to Shea (Id., ¶ 96).
Given these undisputed facts, the Court finds that Lovejoy is entitled
to summary judgment on Counts I and II. With respect to Count I, the age
discrimination claim under the ADEA, plaintiff has failed to establish a
prima facie case of age discrimination. With respect to Count II, the
disability discrimination claim under the ADA, plaintiff cannot establish
that he has a statutory disability, and that he was terminated due to any
Under the ADEA, it is unlawful for an employer to discharge any
individual who is forty years of age or older because of such
individual's age. 29 U.S.C. § 623(a). A plaintiff can prove that he was discriminated against on the basis of age by either the direct or
indirect method. Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1028 (7th
Cir. 1998). Here, the plaintiff relies solely on the indirect method,
using the burden-shifting method set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Under the indirect method, a plaintiff must first establish a prima
facie case of age discrimination. If the plaintiff can establish a prima
facie case, a burden of production then shifts to the defendant to
articulate (through evidence) a legitimate, non-discriminatory reason for
terminating the plaintiff. If the defendant articulates a
non-discriminatory reason, the burden then shifts back to the plaintiff
to demonstrate that the defendant's proffered reason was pretextual.
Miller v. Borden, Inc., 168 F.3d 308, 313 (7th Cir. 1999); Richter, 142
F.3d at 1028. "The ultimate burden of persuading the trier of fact that
the defendant intentionally discriminated against the plaintiff remains
at all times with the plaintiff." Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981).
To establish a prima facie case of age discrimination, a plaintiff must
show that: (1) he was a member of the protected class; (2) he was meeting
the defendant's legitimate expectations; (3) he suffered an adverse
employment action; and (4) he was treated differently than a similarly
situated, substantially younger employee. Richter, 142 F.3d at 1028. To
survive summary judgment, a plaintiff at the threshold must demonstrate a
triable issue as to each element of the prima facie case, Griffin v.
Potter, 356 F.3d 824, 828 (7th Cir. 2004).
There is no dispute that plaintiff here meets two of the four elements
of the prima facie case: (1) the plaintiff is undisputably a member of
the protected class, and (2) he suffered an adverse employment action.
However, plaintiff has failed to offer facts to create a triable issue on
the other two elements of the prima facie case: that he satisfied the legitimate
employment expectations of Lovejoy, and that he was replaced by a
similarly situated and substantially younger person.
As to job performance, by the year 2000, Plaintiff's overall job
performance rating was 3.5 out of 12, ranking him on the borderline of
below average to average. Plaintiff admits that this performance review
was not a product of discriminatory animus indeed, it was prepared by
Mr. Minton, who had hired plaintiff a few years earlier and was older
than plaintiff.*fn6 Plaintiff's 2001 review, in which he received a 3
out of 12 rating, repeated many of the same criticisms as the 2000
review. It was soon after this 2001 review and some additional attempts
by Lovejoy management to help plaintiff improve his performance, that
plaintiff was terminated. In light of this undisputed summary judgment
record, plaintiff has failed to create a triable issue on the second
element of the prima facie case.
Nor has plaintiff offered evidence that he was replaced by a
substantially younger person. To the contrary, the undisputed facts
indicate that Plaintiff's responsibilities were assumed by Mr. Brannen,
who was exactly the same age as the plaintiff. Plaintiff does not argue
that Lovejoy's choice of Mr. Brannen to assume plaintiff's job duties was
discriminatory. Instead, he states (citing Collier v. Bud Company,
66 F.3d 886): "Shea cannot point to a younger person who is similarly
situated. He was not replaced at this time period. However, it is Shea's
argument that the intention of Mortenson was clearly to replace him with
a younger person who had no disability" (PL's Mem. at 3). There are
several problems with this argument. First, Collier does not stand for
the proposition that "a person within the protected class does not have to be
replaced by a younger person if he was fired with the intent to
ultimately replace him based upon his age" that was only a theory
advanced by plaintiff that the district court held to be insufficient to
support a prima facie case of age discrimination. Second, there is no
evidence that: (1) Mr. Mortenson was the decision maker; or (2) that Mr.
Mortenson (or any other decision maker) harbored such an intent.
What's more, this termination decision was made by Mr. Brannen, Mr.
Durham, and Ms. Grossberg. Each of these individuals fell within the
protected age group (over 40 years of age). The fact that one of these
individuals (Ms. Grossberg) was involved in hiring the plaintiff four
years earlier is strong evidence of nondiscrimination. See Equal
Employment Opportunity Comm'n v. Our Lady of Resurrection Med. Ctr.,
77 F.3d 145, 148 (7th Cir. 1996) (affirming summary judgment, noting that
"a person who intends to discriminate against minorities is unlikely to
hire them in the first place"); Fairchild v. Forma Scientific, Ind.,
147 F.3d 567, 572 (7th Cir. 1998) (affirming summary judgment, stating
that a plaintiff has a "tough row to hoe" when fired by a person older
than himself). And, Lovejoy's decision to hire Mr. Brannen (who is
Plaintiff's age) in 1999, and to promote him in 2000, is further evidence
that defendant harbors no discriminatory animus to persons due to their
age. Plaintiff has offered nothing to counter the substantial evidence
presented here of non-discrimination.
The Plaintiff's disability claim under the ADA also fails. The ADA
prohibits covered employers from discriminating against qualified
individuals because of their disability. See Sieberns v. Wal-Mart
Stores, 125 F.3d 1019, 1021-22 (7th Cir. 1997). The ADA affords
protection against two types of discrimination: disparate treatment of
qualified, but disabled, employees; and failure to provide reasonable accommodation for qualified, but disabled,
employees. Id. Regardless of which type of discrimination plaintiff
alleges, in order to recover under the ADA, the plaintiff must have a
statutory disability. "Disability" is defined by the ADA as: "(A) a
physical or mental impairment that substantially limits one or more of the
major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment."
42 U.S.C. § 12102(2)). If the Plaintiff's impairment falls under any one
of these three subparts, then the plaintiff is considered disabled under
Plaintiff argues that he was disabled under the ADA, under Subpart C,
because Lovejoy, through Mr. Mortenson, believed that polio and its
effect on plaintiff rendered plaintiff disabled. In other words,
plaintiff argues that his polio, which caused him to walk with a
perceptible limp, created a belief in the mind of Mr. Mortenson that he
was disabled and that such belief was the basis for his termination.
Specifically, plaintiff argues that the "comments of Mortenson clearly
create a material question of fact as to Lovejoy's motivation for
termination of [plaintiff]" (Pl.'s Mem. at 3). The Court disagrees.
The comment that plaintiff offered as evidence of disability
discrimination took place in the following context: In May or June 2001,
plaintiff came to Mr. Mortenson's office, shortly after Mr. Mortenson
assumed his position as VP of Marketing at Lovejoy. Plaintiff "apparently
walked up to [Mr. Mortenson's] office and was standing at the door."
According to Mr. Mortenson, plaintiff said he had not had a chance to
meet him yet because he left the office early on Monday mornings. The
plaintiff "explained that he was an OEM salesperson and traveled quite a
bit and wanted to welcome [Mr. Mortenson] to Lovejoy." As plaintiff was
leaving, Mr. Mortenson testified that he "noticed he was limping. And
because it was Monday morning in May or June, weather was nice, [he] said, `Oh, did you hurt yourself over the weekend?" Plaintiff
replied to Mr. Mortenson, "No. To tell you the truth, I had polio and
wear a brace." Mr. Mortenson said, "Oh, you must travel a lot. I've been
traveling a lot, too. Do you have any trouble getting through the airport
with the brace?" And, plaintiff said: "No." And, Mr. Mortenson said:
"Great." According to Mr. Mortenson, that was the end of their
conversation, and the next time he saw plaintiff was the day he was
terminated (Ex. 37, pp. 15-16).
There is no evidence offered by plaintiff to rebut Mr. Mortenson's
testimony regarding the context or substance of this conversation. In
fact, in his affidavit, Plaintiff's own testimony on this conversation is
consistent with Mr. Mortenson's deposition testimony (PL's Ex. 1). The
only difference is that the plaintiff drew inferences regarding Mr.
Mortenson's intent that the Court finds unreasonable because they are not
supported by the evidence. In the Court's view, this lone conversation
could not serve as the basis for a reasonable juror to conclude that Mr.
Mortenson harbored a discriminatory belief about the plaintiff sufficient
to create a triable issue on the subject of a perceived disability by
Moreover, there is simply no evidentiary link offered between
Plaintiff's conversation with Mr. Mortenson and Plaintiff's termination.
Thus, even if Mr. Mortenson did perceive plaintiff as disabled, plaintiff has provided no evidence that Mr. Mortenson was
responsible for or involved in the decision by Lovejoy to terminate the
plaintiff. Without such an evidentiary link, there can be no liability
against Lovejoy under the ADA.
For the reasons given above, the Court grants defendant's motion for
summary judgment (doc. # 16) and directs the entry of summary judgment in
favor of the defendant on Counts I and II. We dismiss Count III without
prejudice to refiling the claim in state court. The state law claim in
Count III depends upon facts that are distinctly different from those
necessary to resolve the two federal claims asserted in Counts I and II.
Therefore, there would be no efficiency in this Court's resolution of the
state law claim at this time.