United States District Court, N.D. Illinois, Eastern Division
August 13, 2004.
DENNIS RIORDAN, Plaintiff,
J.C. WHITNEY CO., Defendant.
The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
Dennis Riordan sues J.C. Whitney Co. for retaliation in
violation of Title VII of the Civil Rights Act of 1964 ("Title
VII").*fn1 Riordan claims he opposed unlawful discrimination
and was terminated by Whitney in retaliation for his protected
conduct. Whitney denies that it engaged in retaliation and states
that Riordan was terminated as part of a financially necessary
reduction in force. Whitney moves for summary judgment pursuant
to Federal Rule of Civil Procedure 56.
I. Local Rule 56.1
Local Rule 56.1 requires litigants to follow a detailed
procedure in filing and responding to summary judgment motions.
Riordan has failed to comply with Local Rule 56.1(b)(3); he did
not respond to Whitney's Rule 56.1(a)(3) statement of undisputed
material facts. Whitney's undisputed facts are therefore deemed
admitted. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003);
L.R. 56.1(b)(3)(B). This admission severely penalizes Riordan, for the
court must depart from its usual posture of construing all facts
in his favor. Waffer v. Indian Creek Ranch Club, Inc., No.
99C6413, 2000 U.S. Dist. LEXIS 9008, at *3 (N.D. Ill. June 20,
2000), quoting, Johnson v. Gudmundsson, 35 F.3d 1104, 1108 (7th
Cir. 1994). The court will not consider any facts contradicting
Whitney's Rule 56.1 statement. Smith v. Severn, 129 F.3d 419,
425-26 (7th Cir. 1997). Summary judgment will only be granted,
however, if Whitney demonstrates there is no genuine issue of
material fact and that it is entitled to judgment as a matter of
law. Davis v. Con-Way Transp. Cent. Express, Inc.,
368 F.3d 776, 782 (7th Cir. 2004).
All facts are undisputed unless otherwise noted. Whitney is a
direct marketer of automobile parts and accessories. On October
23, 1995, Whitney hired Riordan as its inventory control manager.
In the Fall of 2000, Riordan had lunch with Carol Warshawsky,
chair of Whitney's board of directors. According to Riordan,
Warshawsky wished to discuss: (1) employees' understanding of
company objectives; and (2) morale and cultural differences
between Whitney's LaSalle and Chicago facilities. Warshawsky has
no recollection of discussing these topics with Riordan.
In response to issues raised at the lunch meeting, on October
18, 2000, Riordan sent Warshawsky an e-mail regarding
communication of corporate objectives. Riordan sent Warshawsky a
second e-mail on November 3, 2000, which noted "the remarkable
attrition that has occurred of recent." Def. Mem. Ex. I. The
November 3, 2000 e-mail attached three documents. The first
document detailed Riordan's perception of Whitney's strengths and
weaknesses and included a statement that "the management team is
not diverse relatively few women and minority managers, fewer women and minority directors, no non-owner executive team
members who are women or minorities." Def. Mem. Ex. I. Riordan
did not know the number of women or minorities who held
managerial titles when he prepared this list. The second document
listed "Key Departures in the Last 24 Months Chicago Only."
Def. Mem. Ex. I. The list included the names and job titles of
several former employees who either voluntarily quit or were
terminated, but did not identify the races or sexes of the
individuals. According to Whitney, of the twenty-eight
individuals listed, eleven were women and one was non-caucasian.
The final document listed "CARS Original Core Team Members of
10/97," including the names of team members and their employment
status. Def. Mem. Ex. I. Riordan asserts these e-mails provided
Warshawsky with concrete examples of minorities and women who
quit or were terminated from the Chicago facility.
In 2001, Whitney adjusted its business processes in order to
generate sales, increase productivity and reduce costs. Economic
considerations led to a series of layoffs and position
eliminations. In January and February 2001, six people were
terminated. Riordan was not terminated at this time. Indeed,
Riordan was promoted in January 2001 to director of merchandise
support and his salary increased from $85,000 to $88,000. In
April 2001, seven employees were terminated. Riordan was not
terminated as part of this April reduction, although three
employees from his department were terminated and at least one
departmental position was eliminated. As a result, Riordan
assumed additional job responsibilities and his salary was
increased from $88,000 to $91,000. Ten more employees were
terminated between May and August 2001. On October 11, 2001, Tim
Ford, Whitney's president and CEO, issued a memorandum to all
employees outlining Whitney's financial woes in light of the 9-11
terrorist attacks and its intended cost-cutting measures,
including further layoffs. In Riordan's department, Eugene Geiger, vice-president of
merchandising and Riordan's supervisor, reduced spending and
consolidated three director level positions into two. Geiger
assessed the three directors and determined Riordan's duties
could be assumed by the other two directors. Geiger recommended,
and Ford approved, elimination of Riordan's position.
Consequently, Riordan was one of twenty employees terminated on
October 11, 2001.
Neither Ford nor Geiger knew of Riordan's e-mails to Warshawsky
when the decision was made to terminate Riordan. Although
Warshawsky received Riordan's two e-mails, she did not discuss or
forward them to others. As chair of the board of directors,
Warshawsky had no direct role in the formulation of departmental
plans for cost-cutting or the decisions regarding job
consolidation or elimination.
I. Standard of Review
Summary judgment is appropriate when the moving papers and
affidavits show there is no genuine issue of material fact and
the movant is entitled to judgment as a matter of law.
Fed.R.Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); King v. Nat'l Human Res. Comm., Inc., 218 F.3d 719, 723
(7th Cir. 2000). Once a moving party has met its burden, the
non-moving party must go beyond the pleadings and set forth
specific facts showing there is a genuine issue for trial.
Fed.R. Civ. P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798
(7th Cir. 1999). A genuine issue of material fact exists 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); Insolia v. Philip Morris,
Inc., 216 F.3d 596, 599 (7th Cir. 2000). II. Retaliation
Title VII prohibits employers from retaliating against
employees who oppose unlawful employment practices covered by
Title VII. 42 U.S.C. § 2000e-3(a). Riordan may prove his
retaliation claim either directly or indirectly. Davis v.
Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 786 (7th Cir.
2004). To survive summary judgment using the direct method,
Riordan must present direct evidence that: (1) he engaged in a
statutorily protected activity; (2) suffered an adverse
employment action; and (3) there was a causal connection between
the two. Id.; Stone v. City of Indianapolis Public Utils. Div.,
281 F.3d 640, 643-44 (7th Cir. 2002).
Alternatively, Riordan may prove his claim indirectly by
demonstrating: (1) he engaged in statutorily protected activity;
(2) he performed his job according to Whitney's legitimate
expectations; (3) despite his satisfactory performance he
suffered an adverse action; and (4) he was treated less favorably
than similarly situated employees who did not engage in
statutorily protected activity. Davis, 368 F.3d at 788. If
Riordan establishes these elements, Whitney must present a
legitimate, nonividious reason for the adverse action. If such a
reason is presented, the burden shifts back to Riordan to show
the proffered reason is pretextual. Id. The burden of
persuasion remains at all times with Riordan. St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 507 (1993). Riordan fails to
present evidence sufficient to meet his burden under either
A. Direct Method
Riordan has not proffered any direct evidence of retaliation.
See Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir.
2000) ("direct evidence essentially requires an admission by the
decision-maker that his actions were based on the prohibited
animus."). Riordan has not asserted, nor is there any evidence to
suggest, that Whitney has somehow admitted Riordan's termination
was retaliatory. Riordan also fails to provide circumstantial
evidence that directly points to a retaliatory intent. Davis,
368 F.3d at 786.
Further, Riordan has not established statutorily protected
activity. Riordan's e-mails to Warshawsky listed the employment
status of employees by name and title. Neither e-mail mentioned
any individual's sex or race, nor the circumstances surrounding
terminations or resignations. The e-mails did not suggest that
attrition or lack of diversity in upper management was the result
of inappropriate or unlawful conduct. Statutorily protected
expression must at least suggest to the employer (if not state
outright) that the employee reasonably believes the employer is
violating Title VII. Gleason v. Mesirow Fin., 118 F.3d 1134,
1147 (7th Cir. 1997) (no protected conduct where general
complaints about management style did not make employee's
concerns of sex discrimination known to employer); Salamanca v.
Robert Half Corp., No. 02C5033, 2003 U.S. Dist. LEXIS 5602, at
*24 (N.D. Ill. Apr. 4, 2003) (no protected conduct where
employee's complaints of unfair treatment did not suggest that
the different treatment was on account of her race or national
origin); Driver v. Arbor Mgmt, Inc., No. 00C3933, 2001 U.S.
Dist. LEXIS 24374, at *3-4 (N.D. Ill. Oct. 4, 2001) (no protected
conduct where employee did not complain to employer about race
Finally, even if his e-mails constituted protected activity,
Riordan has not established any causal connection between his
alleged opposition to discrimination in October and November 2000
and his termination in October 2001. The mere fact that Riordan's
alleged protected conduct occurred prior to his termination does
not prove that he was terminated because of protected conduct.
Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir.
2000). The eleven or twelve month span between Riordan's alleged
protected conduct and his termination is too long to support a reasonable inference that the termination was causally connected
to his protected conduct. See e.g., Haywood v. Lucent Techs.
Inc., 323 F.3d 524, 532 (7th Cir. 2003). And, critically,
Riordan has produced no evidence to support a reasonable
inference that the person who decided to terminate his
employment, Geiger, had any knowledge of Riordan's alleged
protected conduct. "Absent such knowledge, [Riordan] lacks a
causal link between the termination and the complaint of
discrimination." Maarouf v. Walker Mfg. Co., 210 F.3d 750, 755
(7th Cir. 2000). Geiger has testified he had no knowledge of
Riordan's e-mails to Warshawsky when he selected Riordan for
termination. Def. Mem. Ex. Q at 53-54. Ford testified and
attested he had no knowledge of Riordan's e-mails to Warshawsky
when he approved Geiger's selection. Def. Mem. Ex. N at 35; Ex.
O, ¶ 11. Warshawsky testified and attested she never discussed or
forwarded Riordan's e-mails to anyone, nor did she have any
involvement in Riordan's termination. Def. Mem. Ex R at 11; Ex.
W, ¶¶ 2-4. All foregoing testimony is uncontroverted.
B. Indirect Method
For the reasons previously discussed, Riordan has not
established he engaged in protected conduct. Further, he has not
demonstrated he received less favorable treatment than similarly
situated employees who did not engage in statutorily protected
activity. Riordan generally asserts he was selected over two
directors who did not oppose discrimination, but fails to support
his assertion with any evidence. "Where a plaintiff claims that
he was disciplined by his employer more harshly than a similarly
situated employee based on some prohibited reason, a plaintiff
must show that he is similarly situated with respect to
performance, qualifications and conduct." See Snipes v. Illinois
Dep't of Corr., 291 F.3d 460, 463 (7th Cir. 2002). C. Legitimate Reason for Termination
Even if Riordan could establish a prima facie case of
retaliation, he has not established the pretext necessary to
survive summary judgment. Whitney's burden to produce a
legitimate, non-discriminatory reason for Riordan's termination
is "quite light" and "the mere articulation of the reason . . .
puts the onus back on [Riordan] to prove pretext." Flores v.
Preferred Tech. Group, 182 F.3d 512, 515 (7th Cir. 1999).
Riordan may establish pretext directly, by showing Whitney's
decision to terminate was more likely than not motivated by
retaliatory reasons, or indirectly, by showing: (1) Whitney's
explanation has no basis in fact; or (2) the explanation was not
the real reason; or (3) the reason stated was insufficient to
warrant the termination. Shackelford v. Roadway Express, Inc.,
No. 02C1167, 2003 U.S. Dist. LEXIS 108, *22 (N.D. Ill. Jan. 2,
2003), aff'd, Nos. 03-1666 & 03-1667, 2004 U.S. App. LEXIS 7647
(7th Cir. Apr. 19, 2004).
Whitney proffers evidence that Riordan's termination was part
of a financially necessary reduction in force. Geiger decided to
eliminate one of three director level positions and specifically
selected Riordan for termination after assessing the department's
needs and comparing Riordan's skills with those of the two other
directors. On October 11, 2001, Whitney terminated nineteen
employees in addition to Riordan. Whitney has produced
significant uncontested documentary and testimonial evidence to
support its reason for termination.
Nevertheless, Riordan asserts Whitney's proffered reason is
unworthy of credence because its reasons have been inconsistent.
Riordan argues that at the time of his termination and during the
EEOC investigation, Whitney's sole proffered reason for
termination was the 9-11 attack, whereas Whitney now argues that
reductions were necessary because of "economic difficulties" and "business strategy." The consistency of an
explanation may be evidence of its veracity. See Stalter v.
Wal-Mart Stores, Inc., 195 F.3d 285, 291 (7th Cir. 1999).
However, Whitney's explanations are not inherently contradictory
or inconsistent. Moreover, by asserting that the proffered reason
is pretextual, Riordan infers that Whitney terminated nineteen
other employees on October 11, 2001 to cover its retaliatory
motive with regard to him. This implication is speculative and
unsupported. Davis, 368 F.3d at 785. Riordan also ignores
evidence that demonstrates he was given a promotion, additional
responsibilities, and two raises after his alleged opposition to
discrimination and while other employees were being terminated.
Riordan has not met his burden of showing pretext.
The material facts are undisputed. For the foregoing reasons,
J.C. Whitney Co. is entitled to judgment as a matter of law.