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June 22, 2004.


The opinion of the court was delivered by: MARK FILIP, District Judge


Plaintiff Robert Vonckx ("Vonckx" or "Plaintiff") brings this action against his former employer, Allstate Insurance Company ("Allstate" or "Defendant"). Plaintiff alleges that Allstate terminated his employment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Allstate has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. As explained below, Allstate's motion is GRANTED.

I. FACTS*fn1 Plaintiff began work for Allstate in a full-time, permanent position in December 1995. (Defendant's L.R. 56.1(a) Statement of Facts ("Def. SF") ¶ 8.) He was assigned to the Local Area Network Team in Allstate's Claim Technology Services Department ("CTS"). (Id.) Plaintiff's primary duties involved deploying PCs and maintaining Novelle servers, although he eventually took on other responsibilities. (Plaintiff's L.R. 56.1(b) Statement of Additional Facts ("Pl. SAF") ¶¶ 8-9.) At the times relevant to the instant case, Plaintiff was assigned to the Testing and Architecture Support Team ("TAS" or "TAS team"), one of a number of teams within CTS's computing platform management division. (See Def. SF ¶ 9.) There, Plaintiff started to develop computer forms and applications for Microsoft Outlook. (Pl. SAF ¶ 13.) He also maintained another Microsoft product, the Visual Source Safe Library ("VSSL"), which was a highly secure repository for source code developed by Allstate. (Id. ¶ 11.) Plaintiff also worked on the TAS team's problem management system. (Id. ¶ 77.) It is undisputed that Plaintiff was a talented programmer and that many Allstate employees sought his technical assistance. (Id. ¶¶ 14, 21-25; Def. SF ¶¶ 10-11.)

  In December 1998, Paul Balazs ("Balazs") became Plaintiff's team leader on the TAS team. (Def. SF ¶ 9.) By all accounts, Plaintiff was a good employee for most of the period he worked under Balazs's supervision, and Balazs rated Plaintiff highly. For example, in May 2000, Balazs rated Plaintiff's work for the 1999 calendar year as "exceeds all expectations." (Pl. SAF ¶¶ 20-21.) In March 2001, Balazs again gave Plaintiff an "exceeds" rating on his yearly performance evaluation. (Id. ¶¶ 22, 24.) The "exceeds" rating is the highest an Allstate employee can receive. (Def. SF ¶ 10.)

  The events giving rise to this suit began shortly after Plaintiff's March 2001 performance evaluation. Plaintiff had developed a Microsoft Outlook program for use by the approximately 300 employees within CTS. (Pl. SAF ¶ 16.) In April 2001, Balazs instructed Plaintiff to install the program — known as "Move, Add, Change" — on computers used by the Multiple Access Integration Team ("MAI team" or "MAI"), an Allstate department outside CTS. (Id. ¶ 26; Def. SF ¶ 12.) Allstate had recently created the MAI team to develop web sites enabling consumers to buy insurance over the Internet. (Def. SF ¶ 12.) The "Move, Add, Change" program would facilitate Allstate's efforts to hire and process new employees into the MAI team by consolidating into one system all information regarding the new employees' administrative needs. (Id.)

  On April 30, 2001, Plaintiff met with members of the MAI team. (Pl. SAF ¶ 30; Def. SF ¶ 13.) The parties dispute what happened at this meeting and immediately afterwards. Plaintiff claims that no one on the MAI team gave him a deadline or otherwise indicated any pressing need for the program. (Pl. SAF ¶ 31.) Allstate alleges that Lydia Rosado ("Rosado"), one of the MAI team application specialists, told Plaintiff that MAI team resource managers needed to be able to use the "Move, Add, Change" program "right away," because the team was hiring some new employees. (Def. SF ¶ 13.) At any rate, it is undisputed that Plaintiff presented the MAI team with the program sometime that same day. (Id. ¶ 14.) Plaintiff asserts that, due to technical problems, he was unable to successfully install the program on the MAI team's computers. (Pl. SAF ¶¶ 37-39.) He also claims that he informed Balazs about the unsuccessful installation. (Id. ¶ 40.)

  One of the parties' main points of contention is whether the program was password protected when the MAI team received it. The parties agree that when Plaintiff had originally developed the program, he placed password protection on it. (Def. SF ¶ 20.) Any program user would therefore have needed Plaintiff's password to access the source code. (Id. ¶ 21.) Sometime shortly after Plaintiff installed the "Move, Add, Change" program at MAI, Rosado attempted to access and modify the program's source code. (Id. ¶ 14.) Defendant argues that Rosado was unable to successfully modify the program's source code because the program was password protected. (Id.) Plaintiff disputes this, claiming that he had removed the password protection before giving the program to the MAI team. (Pl. SAF ¶¶ 44-45.)

  On May 1, 2001, Rosado emailed Plaintiff and requested that he provide the source code for the "Move, Add, Change" program. (Id. ¶ 32; Def. SF ¶ 15.) Rosado copied her email to another MAI team member, Lizzie Jones ("Jones"), who had been present at the April 30 meeting. (Def. SF ¶ 15.) Rosado's email to Plaintiff, in relevant part, reads as follows:
I need to know the following so that we can take over the project. We know you will not be available all of the time we need to make changes to the project because you report to a different team. We want to learn to change the form, contacts, group names, and MAI if that were to change also.
* * *
Go over each form, its functionality, the coding behind it (the steps to make each button function), and how we can make changes to it.
. . . (W)e need to know how everything works in order to be able to support it. If you would rather copy the forms from your folder instead of using the ones I created, it is fine, but we need to know the details behind it.
(Id.) Plaintiff then replied to Rosado's email, stating, "Although we will not be able to give you the source code, we would be happy to partner with you in making this application work for all areas of TSSFS."*fn2 (Id. ¶ 17.) Plaintiff's email response was copied to Jones. (Id.)

  Plaintiff contends that he met with Rosado right away after her email and attempted to fix the problems with the program. (Pl. SAF ¶ 32.) Plaintiff claims that he and Rosado "struggled" to get the program files to operate on Rosado's system, but ultimately they were unsuccessful due to technical problems. (Id. ¶¶ 33-34.) Despite admitting that he sent the aforementioned email response to Rosado, Plaintiff asserts that he provided "all the source and application code that he had," fully discharging his duties with respect to the MAI team. (Id. ¶ 35.) Rosado, Plaintiff claims, never requested the source code again after their failed troubleshooting efforts. (Id.) Defendant, on the other hand, disputes that Plaintiff made any attempt to meet with Rosado or provide the requested access information and further explains that Plaintiff never informed Balazs of any problem with the installation. (Defendant's Response to Pl. SAF ("Def. Resp.") ¶¶ 32-47.)

  On May 29, 2001, Allstate hired Saifur Rahman ("Rahman"), age 26, as a new member of the TAS team. (Pl. SAF ¶¶ 74, 76; Def. SF ¶ 48.) Balazs announced the hire to the TAS team, and informed them that Rahman would be doing web development, some administrative work, and some work on TAS's problem management system. (Pl. SAF ¶ 76; Def. SF ¶ 49.) Balazs did not indicate that any of Plaintiff's job duties would be changing because of Rahman's hire. (Def. SF ¶ 49.)

  In early June 2001, the password issue again took center stage. In his deposition, Balazs testified that, from the time Plaintiff undertook the MAI assignment until early June, Balazs assumed that the MAI team had full access to the systems and was happy with Plaintiff's installation of the "Move, Add, Change" program. (Def. SF ¶ 18.) Plaintiff disagrees that Balazs could have had this assumption, because he claims to have told Balazs in early May that the program installation was unsuccessful. (Pl. SAF ¶ 40.) Whatever Balazs may have believed in May and early June, however, it is undisputed that on June 6, 2001, Balazs received a copy of an email that Jones had sent to Plaintiff regarding the program. (Def. SF ¶ 19.) Jones's email reads in part:
[MAI has] gone beyond the set timeframe for this project. We are unable to view the code to build our code for MAI specification. Also, we are unable to edit the forms because you have password protection on all the forms. We understand from your message below that you want to market your process to the entire TSS/FS group, but we do not have the authority to give you a partnership with TSS/FS or any other group.
Please understand that we are not trying to take credit for creating your process. However, we are interested in benefiting [sic] from tools that currently exist at Allstate. So if there is no special official protocol regarding your tool, we would sincerely appreciate it if you would provide us with the previous[ly] requested information and any other information that we will need to model your system. Again, please understand we will be using your process as a template.
(Id. (emphases added).) Jones's email also contained Rosado's previous May 1, 2001 email to Plaintiff, along with Plaintiff's response. (Id.)

  As June progressed, Balazs clearly expressed concern with Plaintiff and the lack of progress concerning the "Move, Add, Change" program. Specifically, on June 20, 2001, Balazs emailed Plaintiff and requested that he provide the password to the MAI team. (Id. ¶ 22.) Balazs stated in his email that "the MAI resource managers have made a simple request to have access to the code and forms so that they can modify the [Move, Add, Change] application to fit their work processes." (Id. ¶ 25.) In addition, Balazs reminded Plaintiff that "[a]s an Allstate employee, you have been compensated for your efforts in developing this system." (Id. ¶ 26.) Finally, Balazs warned that he had "grown weary in [sic] discussing this issue with you any further. We have discussed this issue repeatedly over the last week with no positive outcome. This has become a job performance issue, and I will treat it as such." (Id. (emphasis in original).) Balazs's email also contained Rosado's*fn3 previous email to Plaintiff, along with Plaintiff's reply to Rosado. (Id.)

  Later the same day, Plaintiff emailed a reply to Balazs.*fn4 (Id. ¶ 28.) In the email, Plaintiff cryptically stated only that "Steve Wright is the owner of the PCCSO*fn5 system, NOT me." (Def. SF ¶ 28 (capitalization in original).) Plaintiff did not provide Balazs with any password that would allow the MAI team to access his program's source code. (Id.)*fn6

  Following the email exchange, at around 4:00 p.m. the same day, Plaintiff had a face-to-face conversation with Balazs in which Balazs again requested the password. (Def. SF ¶ 32.) Plaintiff responded that he was unable to give Balazs the password at that time, and he provided no reason for his inability to comply with Balazs's request.*fn7 (Def. SF ¶ 33.) Plaintiff took off from work the following two days, June 21 and 22, 2001, to take care of his terminally ill grandfather. (Pl. SAF ¶¶ 61-62; Def. SF ¶ 37.) At around 9:00 a.m. on June 21, Plaintiff left a message in Balazs's voicemail.*fn8 (Def. SF ¶ 38.) Plaintiff told Balazs that he was "unable to provide answers to the questions." (Id. ¶ 39.) It is undisputed that Plaintiff did not give Balazs the password on June 21, and he did not try to call Balazs again that day because Plaintiff "figured that [the one voicemail] was good enough." (Id. ¶¶ 38-40.)

  On June 22, Plaintiff made no further attempt to contact Balazs. (Id. ¶ 40.) Plaintiff did, however, participate in a telephone conference regarding the password issue with Jennifer Noe ("Noe"), Plaintiff's employee advocate, and Joan Naughton-Gerdes ("Naughton-Gerdes"), Plaintiff's direct supervisor. (Pl. SAF ¶¶ 64-65.) While details of the phone call are scant, it is undisputed that Allstate changed the password issue from being a performance problem to being an issue of employee misconduct on Plaintiff's part. (Id. ¶ 66.)

  When Plaintiff came to work on Monday, June 25, he met with Balazs and Noe. (Def. SF ¶ 42.) Marina Graf ("Graf"), an Allstate human resources consultant, and Michael Thomas ("Thomas"), Allstate's Assistant Vice President of Application Services, also participated. (Id.) Plaintiff was informed that Allstate was suspending him pending an investigation. (Id.) Despite this, Plaintiff again failed to provide a password at any time that day. (Id. ¶ 43.)

  On June 26, 2001, Noe sent a letter to Thomas in which she stated that Plaintiff's direct management group had lost confidence in Plaintiff's ability to perform his job because he was "deliberately ignoring a request to provide necessary password information to the [MAI Team] leadership group." (Def. SF ¶ 45.)*fn9 Later the same day, Plaintiff was terminated for employee misconduct for failing to provide the requested password despite repeated requests. (Id. ¶ 46.) Plaintiff was forty-three years old at the time of his termination. (Def. SF ¶¶ 2, 46.) So was Balazs. (Def. SF ¶ 4.)

  On August 30, 2001, Plaintiff attended a hearing at the Illinois Department of Employment Security ("IDES") concerning his application for unemployment benefits. (Def. SF ¶ 23 & Ex. D (IDES Hr'g Tr.).) At the hearing, Plaintiff testified under oath about the events leading to his termination. (Def. SF ¶ 23.) When the IDES administrative referee asked Plaintiff about the password, Plaintiff repeatedly acknowledged that he had not provided any password to Balazs. (Def. SF Ex. D at 9 (Plaintiff testifying that on June 20, 2001, "I told him [Balazs] that I was unable to give him the password at that time.") (emphasis added); 10 ("I was unable to explain the reason to him at that time."); 8 ("I was under the impression that, um — we at CTS were not issuing a password to other departments"); 10 ("I did not give him a reason, but I did not think that it was taken that it was a refusal.").)*fn10 (Id.)

  On March 13, 2002, Plaintiff filed a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Def. SF ¶ 5.)*fn11 On August 26, 2002, the EEOC issued Plaintiff a right to sue letter. (Id. ¶ 7.) On November 21, 2002, Plaintiff filed suit in this Court, alleging that defendant Allstate discriminated against him in violation of the ADEA when it terminated his employment. (D.E. 1.)


  Summary judgment is proper where "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The nonmovant cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Educ. Servs., Inc., 176 F.3d 934, 936 (7th Cir. 1999) (citation omitted).

  In an employment discrimination case, a plaintiff may avert summary judgment "by presenting enough evidence . . . of discriminatory motivation to create a genuine issue for trial." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000) (citation omitted). In deciding a motion for summary judgment, the Court can only consider evidence that would be properly admissible at trial. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The Court views the record and all reasonable inferences drawn therefrom in the light most favorable to the nonmovant. See Fed R. Civ. P. 56(c); Foley 359 F.3d at 928.


  Under the ADEA, it is "unlawful for an employer . . . to discharge any individual or otherwise discriminate . . . because of such individual's age." 29 U.S.C. § 623(a)(1). An employee must be over forty years old to be within the protected class defined by the ADEA. 29 U.S.C. § 631(a). An employer's "liability [under the ADEA] depends on whether . . . [age] actually motivated the employer's decision." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (citations omitted). When evaluating an ADEA case, the Court does not, however, pass on the wisdom or fairness of an employer's otherwise lawful business decisions — "[n]either the jury nor this Court is empowered to act as a `super-personnel department' and decide if [an employer's employment decision] was unwise or unjustified." Castleman v. Acme Boot Co., 959 F.2d 1417, 1422 (7th Cir. 1992) (citation omitted); accord, e.g., Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216, 1220 (7th Cir. 1991) (under the ADEA, a company's hiring and firing practices, for better or worse, may be "medieval," "high-handed," or "mistaken" so long as age is not a relevant factor in employment decisions) (citations and internal quotations omitted), overruled in part on other grounds by Oxman v. WLS-TV, 12 F.3d 652 (7th Cir. 1993).

  A plaintiff may present evidence of discrimination under either the "direct method" or "indirect method." Cerutti v. BASF Corp., 349 F.3d 1055, 1060 (7th Cir. 2003). Under the direct method, a plaintiff must "show, by way of direct or circumstantial evidence, that his employer's decision to take an adverse job action against him was motivated by an impermissible purpose, such as . . . age." Id. at 1061. A plaintiff may offer evidence under the indirect method by using the familiar McDonnell Douglas burden-shifting formula. See McDonnell Douglas v. Green, 411 U.S. 792 (1973). Under either method, the plaintiff must ultimately "demonstrate that the ...

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