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CAVALIERO v. FIRST USA BANK

August 18, 2004.

TONY CAVALIERO, Plaintiff,
v.
FIRST USA BANK, Defendant.



The opinion of the court was delivered by: JAMES ZAGEL, District Judge

MEMORANDUM OPINION AND ORDER

I. Factual Background

Plaintiff Tony Cavaliero began his employment with Defendant First USA in 1988. At the time, First USA was known as FCC National Bank and issued credit cards for First Chicago Corporation under the trade name First Card. In 1999, after a series of corporate mergers, First Card became known as First USA Bank. Throughout his employment with First USA, Plaintiff worked in the human resources department in Elgin, Illinois. After several promotions and job changes, Plaintiff became a senior human resources consultant and business partner in 1998. Plaintiff held this position until his active employment ended in October, 2000. At the time his position was eliminated, Plaintiff was 46 years old. From May, 2000 until the time of Plaintiff's employment termination, Todd Stevenson was the human resources manager for Defendant to whom Plaintiff reported.

  In the fall of 2000, Defendant decided to reduce the size of its human resources staff. Defendant ordered Stevenson to pare his staff down to a level where the ratio of employees to human resources professionals was 450 to 1. At this time, the Elgin employee population was approximately 1800, which meant that the department could retain a total of four employees, including Stevenson. At the time, the department consisted of six business partners who reported to Stevenson: the Plaintiff, Sandra Rosa, Blanca Sandoval, Marsha Rohner, Rhodora Markazi, Rhonda Zaccone and two administrative assistants: Doris Gallant and Heidi Coup Alvarez.

  In order to meet the Defendant's mandate, Stevenson decided to eliminate the position of the department's administrative assistant, Doris Gallant, and to eliminate three of the six business partner positions. Stevenson terminated Rhonda Zaccone's employment because she wanted to work part-time. Of the remaining five business partners, Stevenson chose to terminate the employment of Plaintiff, age 46, and Rhodora Markazi, age 39. Stevenson selected Sandra Rosa, age 26, Blanca Sandoval, age 29, and Marsha Rohner, age 52, to staff the remaining positions in the human resources department.

  The Defendant maintains guidelines, which describes its reduction in workforce policy. The policy states in relevant part:
Q: Where there is a need to select among employees, what selection criteria will be used?
A: . . . In other situations, it may be necessary to select among employees impacted by workforce reduction. In those situations, the goal is to staff the remaining positions with the employees who best fit the needs and requirements of the organization; thus, employee selection will be based primarily on the skills/qualifications associated with the remaining positions.
After analyzing the job content of the remaining (and perhaps changed) jobs, management and human resources for the involved area may develop a list of skills and qualifications needed by incumbents for those positions. Having done this, the skills and qualification of affected employees would then be reviewed against the skills/qualifications required for the remaining jobs. If appropriate specific skills or competencies can be weighted to indicate relative importance. Employees existing skills can then be ranked using those weightings. In some cases, it may be appropriate to rank employees using a management or decision-making team approach.
Where there is no difference among employees' skills/qualifications, years of service will become the differentiating factor with the longer service employee chosen to fill the jo b. . . .
Def.'s Appendix in Support of Def.'s Motion for Summary Judgment, Exhibit 2A at ¶ 14.

  In his Complaint, Plaintiff alleges that Defendant engaged in policies and practices that resulted in unlawful employment discrimination against employees over the age of forty, as exemplified by his October, 2000, termination. Defendant claims that Plaintiff's employment was terminated because the Defendant decided to reduce its human resources staff and legitimately determined that other human resources personnel were better suited than Plaintiff for the remaining positions.

  II. Analysis

  Defendant now moves for summary judgment, contending that Plaintiff has no evidence, either direct or indirect, that his employment was terminated because of his age. Summary judgment is appropriate where 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A material fact is one which, under applicable law, might affect the outcome of the suit. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine only if the evidence presented is such that a reasonable jury could return a verdict for the nonmovant. Anderson, 477 U.S. at 248. When reviewing the record on summary judgment, I must draw all reasonable inferences in the light most favorable to the nonmovant. Anderson v. Stauffer Chemical Co., 965 F.2d 397, 400 (7th Cir. 1992). To avoid summary judgment, however, Plaintiff cannot rest on the pleadings alone, but must present specific facts showing a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If no reasonable jury could find for the party opposing the motion, it must be granted. Mills v. First Fed. S & L Ass'n, 83 F.3d 833, 840 (7th Cir. 1996).

  The Age Discrimination in Employment Act ("ADEA") makes it unlawful for an employer to discharge or otherwise discriminate against an individual because of his age. 29 USC § 623(a). To defeat a motion for summary judgment, an ADEA plaintiff must present sufficient evidence to raise an inference that he was intentionally discriminated against because of his age. See 29 USC § 623(a)(1); Mills, 83 F.3d at 840. A plaintiff may prove age discrimination by presenting direct or circumstantial evidence that age was a determining factor in his termination, or by establishing a prima facie case for discrimination under the indirect, burden-shifting method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Id. Whether a plaintiff proceeds under the direct or indirect method of proof, the standard is the same: the plaintiff must demonstrate that the employer would not have terminated his position but for his or her age. Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003). As a general rule, courts are reluctant to grant summary judgment in discrimination cases because the material issue involves the weighing of conflicting indications of motive or intent, which is "both sensitive and difficult." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983). But, the Seventh Circuit has found that summary judgment is proper where the record indicates that the plaintiff was discharged pursuant to a corporate reorganization or a reduction in the workforce. Gustovich v. AT&T Communications, Inc., 972 F.2d 845 (7th Cir. 1992); Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216 (7th Cir. 1991).

  Plaintiff argues that there is sufficient evidence to prove age discrimination under both the direct and indirect methods. To prevail under the direct method, Plaintiff must present direct or circumstantial evidence that age was a determining factor in his discharge. In this case, Plaintiff concedes that he has no direct evidence of discrimination but argues that he can present sufficient circumstantial evidence to construct "a `convincing mosaic' of circumstantial evidence" from which a reasonable jury could infer intentional discrimination by the decision maker. Cerutti, 349 F.3d at 1061.

  Plaintiff argues that his circumstantial evidence includes (1) the characterization of his work by managers and employees, including Faye Dadzie's statement that his work was "far and away superior to Sandoval and Rosa," (2) evidence of a merger in 1999, (3) evidence that, following the merger, a dramatic company culture change occurred where older employees were being forced out as indicated by the exclusion of older employees from meetings, the replacement of managers over 40 by significantly younger managers, and rumors and conversations focused on the lack of job security for anyone over 40, and (4) evidence that, within the year of change, Plaintiff reported to three different managers where his complaints regarding poor evaluations were ignored and his terminating manager purposefully excluded employees under the age of 40 from termination, proffered inconsistent reasons for Plaintiff's termination, and failed to follow company policy in implementing a reduction in force by not considering experience and qualifications in the reduction in force decision making analysis.

  Within this list, there are three distinct areas of circumstantial evidence argued by Plaintiff. The first concerns Plaintiff's argument that his employment abilities greatly exceeded those of his peers. In examining the evidence presented by Plaintiff, I find that his former supervisor's (Dadzie, Janis and Luedemann) testimonies regarding Plaintiff's employment capabilities are irrelevant since they left prior to Stevenson's tenure as Plaintiff's manager. It is entirely possible that Plaintiff's work dropped off relative to the performance of his peers either prior to or during Stevenson's tenure. This possibility is supported by the evaluation reports of Roberta Kappler, Plaintiff's manager from June 1999 through May 2000. Kappler's reports indicated that Plaintiff needed to (1) do better at embracing and facilitating change in First USA's policies and procedures that occurred following the merger (noting examples of Plaintiff's vocal resistance to change in policies and procedures), (2) become more self-sufficient and efficient by utilizing technology, software, and electronic databases available to him (noting that Plaintiff had ample training but was not fully utilizing the technology skills he was taught), and (3) become "less reliant" on administrative support. As part of this report, Kappler rated Plaintiff as "consistent," a mark lower than the "outstanding" given to Rosa and Sandoval. In choosing Plaintiff for reduction in force, Stevenson found that Plaintiff was especially weak in his technical skills and his ability to be self-sufficient without administrative support, that he had limited computer skills and was very dependent on administrative assistance, and that he had been resistant to undertaking projects. The similarities between Stevenson's reasons for dismissal and Kappler's review of Plaintiff's deficiencies support Stevenson's conclusion that Plaintiff's abilities did not greatly exceed those of his peers at the time of his termination.

  The second area of circumstantial evidence is based on Plaintiff's argument that evidence exists regarding the dramatic company culture change following the 1999 merger. Plaintiff characterizes this culture change as one in which employees over 40 felt unwelcome, excluded, and were ultimately terminated and replaced by younger managers and employees. Plaintiff's argument is supported by his own testimony and the testimony of other over-40 former employees, including Janis, Luedemann, Scott and Dadzie. In a previous decision, the Seventh Circuit held that testimony regarding an age-discriminatory "culture" is too vague and speculative to establish discrimination. See Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 360 (7th Cir. 2001). Although this case may be distinguished from Kadas, as more than one witness testified to the existence of an age-discriminatory culture and several of the witnesses were disinterested commentators, I find that the testimony offered by the deponents on the Defendant's corporate "culture" is, by its own nature, too vague and speculative to establish direct evidence of discrimination. In particular, testimony regarding after-hour, non-compulsory, social gatherings by company employees and testimony regarding ...


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