United States District Court, N.D. Illinois, Eastern Division
August 18, 2004.
TONY CAVALIERO, Plaintiff,
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
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
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
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
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 overall "feelings" of exclusion are too vague
to support a direct claim of discrimination. Additionally, any
comments made by Plaintiff regarding the company culture change
are inapplicable, as an interested party's comments regarding the
vague issue of company culture has little probative value. See
Kadas, 255 F.3d at 360.
Finally, as evidence of the culture, Plaintiff submits a chart
that lists 14 instances in which Defendant replaced older
managers with younger managers. With respect to this chart, I
agree with Defendant's characterization of Plaintiff's evidence
as "cherry-picking" since the evidence lacks context. In fact,
the chart lists only 14 of 35 individuals whose information was
requested by Plaintiff during discovery. Plaintiff does not
indicate how he generated the original discovery request for the
35 individuals or how he chose the 14 listed in the chart
presented to this court. As a result, the chart cannot be seen to
indicate a pattern of age discrimination.
The third area of circumstantial evidence is based on
Plaintiff's argument that Stevenson ignored Defendant's policy in
implementing staff reductions by failing to take into account
Plaintiff's experience and qualifications and that Stevenson
chose to purposefully exclude under 40-employees from the scope
of his reduction. In responding to Plaintiff's arguments, I first
find that Stevenson did not ignore Defendant's policy, which
requires consideration of experience and qualifications in a
reduction in force analysis, as experience and qualifications
were explicitly included in Stevenson's ratings spreadsheet three
specific times (Competency #1, Competency #6 and Competency #7).
Additionally, I find that Stevenson did not purposefully exclude
under-40 employees from the scope of his reduction since
Stevenson selected 39-year old Rhodora Markazi to be eliminated with Plaintiff, and retained 52-year old
Plaintiff also claims that Stevenson's proffered reason for
terminating his employment is contradicted by the deposition
testimony of another one of Defendant's employees, Karen Johnson.
Stevenson testified that he created a ratings spreadsheet
comparing the skills of his current employees in 16 different
areas, with each of the areas weighted in proportion with
Stevenson's beliefs as to the future needs of the company.
Defendant claims that Stevenson's testimony is contradicted by
Johnson's testimony, the text of which follows:
A: And as it says here it was Todd's responsibility
to look at the skills and qualifications that would
be needed in the job going forward and compare them
to the individuals who were being considered, or pool
of individuals that were existing in the HR business
Q: And did you make a determination of whether or not
Todd Stephenson had done this?
A: Yes, he had done that.
Q: How did you know if he had done that.
A: Well, he had provided me with the information on
how he did that as part of this investigation.
Q: What did he provide you?
A: He provided me with a document that he created
that I had asked him to provide me to that he
created for this investigation. Under the advise of
Q: So he created the document as a result of your
asking him to do so
A: To do so in writing.
Q: in connection with this
Q: in connection with this investigation?
Q: So any document that you got was specifically a
result of being asked to respond to the charge?
A: Co rrect. . . .
Q: What was that [the document Stevenson gave to
Johnson] kind of a spreadsheet type document that
Todd Stephenson had prepared for you?
A: No. As I recall it was just a listing of the
individuals and their skills and
qualifications. . . .
Q: And what were the and so what did this report
that Todd Stephenson completed for you at your
request, what did it note? What did it show you that
you used in making any conclusions that you made in
your investigation that you told me was that you
were convinced that Tony's termination was not age
A: It basically broke down the various skills and
qualifications that the individuals had, including
Tony Cavaliero. And, you know, the and where there
were some discrepancies in what were needed in going
Dep. of Karen Johnson, at 58-61. Plaintiff claims that Johnson's testimony establishes that the
document on which Stevenson claims to have based his termination
decisions was not created until after his termination. Following
my analysis of the deposition testimony, I find that Plaintiff
has failed to provide any evidence to substantiate that claim.
Johnson's testimony explicitly states that the document provided
to her was not a spreadsheet. Instead, the document was one in
which Stevenson articulated how he compared the employees in
making his decision. It is important to note that Johnson did not
request Stevenson to forward any documents that he used in making
his termination decisions. Rather, she asked him to prepare and
provide a document for her articulating his reasons for the
decisions, which Stevenson did in a non-spreadsheet format.
Therefore, in no way does Johnson's testimony contradict the
unimpeached testimony of Stevenson that he based his termination
decisions on a ratings spreadsheet in which he scored each of his
employees in 16 different areas with each of the areas weighted
in proportion with Stevenson's beliefs as to the future needs of
the company. Based on the testimony of Johnson regarding the
substantive text of the document she received, it appears that
Stevenson simply articulated the results of the spreadsheet
analysis in a more reader friendly document for Johnson's
investigation. This conclusion is strengthened by Johnson's
unimpeached affidavit in which Johnson clarifies the testimony of
her deposition and states:
4. . . . On pages 58 and 59 of the [deposition]
transcript, I refer in my testimony to a document
created by Todd Stevenson to help me in my
investigation. The document I referenced is the
attached Exhibit A [redacted].
5. It is my understanding that Mr. Stevenson had
previously drafted and utilized another document to
assist him in making his decision to eliminate the
positions of Mr. Cavaliero and several other human
resources professionals. This document is attached
hereto as Exhibit B. The do cument attached as
Exhibit B is not the document I was referencing in my
deposition at pages 58 to 59 of the transcript.
Aff. of Karen Johnson, at ¶ 4, 5. On the basis of the evidence
described above, I find that Johnson's testimony does not contradict Stevenson's assertion
that he based his termination decisions on the ratings
spreadsheet he created prior to Plaintiff's termination, and as
such, does not offer circumstantial evidence of age
discrimination. Based on the above analysis, I find that
Plaintiff's arguments are either unsubstantiated by the evidence
actually presented in this case or insufficient as a matter of
law, and as a result, I conclude that Plaintiff's evidence does
not meet the standard required by Cerutti to prove
discrimination under the direct method.
Under the indirect burden-shifting method articulated in
McDonnell Douglas, in the context of reduction of force, to
make a prima facie showing of age discrimination the plaintiff
must establish that: (1) he is a member of the protected class,
(2) he was performing his job to his employer's satisfaction, (3)
his position was eliminated, and (4) someone much younger than
him is now doing the work he was doing. Thorn v. Sundstrand
Aero. Corp., 207 F.3d 383, 386 (7th Cir. 2000); see also
Johnson v. Zema Sys. Corp., 170 F.3d 734, 742-43 (7th Cir.
1999). Following a prima facie showing, the burden shifts to
the defendant to articulate a legitimate, nondiscriminatory
reason for the adverse action. See Cowan v. Glenbrook Sec.
Servs., 123 F.3d 438, 445 (7th Cir. 1997); Miller v. American
Family Mut. Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000). If the
defendant is able to present a legitimate, non-discriminatory
basis for the termination, the burden shifts back to the
plaintiff to establish that the proffered reason is merely a
pretext for discrimination. See Mills, 83 F.3d at 843.
For the purposes of this motion, Defendant has conceded that
Plaintiff can make a prima facie showing of age discrimination.
However, Defendant asks this court to find that it has provided a
legitimate, non-discriminatory basis for Plaintiff's termination.
Defendant claims that Plaintiff's position was terminated because
he was the second lowest performing employee in the human
resources group. According to the spreadsheet analysis, Plaintiff
rated fourth out of the five full-time business partners, with a score of 3.0, compared
to Rosa, Sandoval and Rohner who scored 3.925, 3.8, and 3.475,
respectively. Since lower performance is a legitimate,
nondiscriminatory basis for firing Plaintiff, the burden shifts
back to Plaintiff to establish that Defendant's proffered reason
is merely a pretext for discrimination.
To establish pretext, Plaintiff must provide evidence that
calls into question the truthfulness of Defendant's alleged
legitimate, non-discriminatory basis for Plaintiff's termination.
See Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 676
(7th Cir. 2003). Plaintiff claims that the depositions of Johnson
and Stevenson bring into question the truthfulness of Defendant's
reasoning because they provide conflicting information regarding
whether Stevenson created his spreadsheet prior to the actual
decision to terminate Plaintiff's employment. For the same
reasons as articulated above, I do not find that Defendant's
legitimate, non-discriminatory basis is brought into question by
Johnson's testimony. A review of the testimony and Johnson's
subsequent affidavit demonstrates that there has been no evidence
produced by Plaintiff to contradict Stevenson's testimony that he
relied on the ratings in his spreadsheet when he decided to
terminate Plaintiff's employment. Additionally, Plaintiff argues
that I should not grant summary judgment because Stevenson failed
to follow company policy by not considering qualifications or
experience in his ratings spreadsheet. Again, for the reasons
stated above on this issue, I find that Plaintiff's claim is
incorrect, as Defendant did consider qualifications and
experience in his decision to terminate Plaintiff.
Next, Plaintiff argues that pretext may be demonstrated because
Defendant indicated that Plaintiff was discharged because his
skills in reorganization were unimportant, yet those skills were
expressly mentioned as being valued with reference to retaining
employees. Plaintiff is correct in stating that those skills were
in fact valued, albeit not as greatly as other skills, in Stevenson's ratings spreadsheet. But, even with Plaintiff's
strong performance in this area (Plaintiff received a "4" on a
5-point scale, which matched the highest score in this area), he
still did not rate within the top 3 business partners in the
human resources department.
Third, Plaintiff argues that pretext may be established if a
court thinks that the employer misjudged the qualifications of
the employees. Plaintiff is correct in this assertion, but the
standard of proof to demonstrate pretext based on evidence of
qualifications is extremely high. "Where an employer's proffered
non-discriminatory reason for its employment decision is that it
selected the most qualified candidate[s], evidence of [other
employee's] competing qualifications does not constitute evidence
of pretext `unless those differences are so favorable to the
plaintiff that there can be no dispute among reasonable persons
of impartial judgment that the plaintiff was clearly better
qualified for the position at issue." Millbrook v. IBP, Inc.,
280 F.3d 1169, 1180 (7th Cir. 2002). "In effect, the plaintiff's
credentials would have to be so superior to the credentials of
the person selected for the job that `no reasonable person, in
the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff for the job in question.'"
Id. at 1180-81. In applying this standard, a court is not
allowed to second guess an employer's business judgments. See
Id. at 1181. A court must respect the employer's "unfettered
discretion" to choose among qualified candidates, as comparative
qualifications do not, by themselves, support a finding of
pretext. Id. at 1181-82. In using the standard of proof
required by the Seventh Circuit in Millbrook, I do not find
that Plaintiff has made a sufficient showing of pretext through
evidence of disparate qualifications. In this case, there are
several analyses, including Stevenson's and Kappler's reviews,
which suggest that Plaintiff's qualifications were in fact lesser
than those of his fellow business partners. Moreover, Plaintiff failed to prove that his qualifications are so superior that no
reasonable person could have chosen the selected candidate over
the plaintiff for the job in question.
Finally, citing Schuster v. Lucent Techs., 327 F.3d 569, 574
(7th Cir. 2003), Plaintiff argues that he need not establish that
his employer did not honestly believe the reasons it gave for
firing him, so long as he can establish that an improper motive
tipped the balance in favor of discharge. Plaintiff claims that
the deposition testimonies of several former and current
coworkers provide sufficient evidence of improper motive by
Defendant, (in the form of bias against those over 40) tipping
the balance in favor of discharge. For the following reasons, I
find that Plaintiff has failed to offer sufficient proof of an
improper motive, and as such, the evidence is not sufficient to
support a finding of pretext. First, as previously stated above,
the testimonies of several former and current co-workers,
regarding the company culture, are insufficient as a matter of
law to prove discriminatory motive primarily because the comments
are vague and speculative. Second, in the same reduction in force
in which Defendant fired Plaintiff, Defendant also fired Markazi,
an under-40 year old business partner, and retained Rohner, a 52
year old business partner. The fact that Defendant retained an
employee that is even older than Plaintiff, and fired an employee
outside of the Plaintiff's protected class provides ample support
for the conclusion that Defendant did not use an improper motive
of age to tip the balance in favor of discharge. Accordingly, I
find that Plaintiff has failed to prove a case of age
discrimination under the burden shifting method of McDonnell
Douglas Corp. sufficient to withstand summary judgment. For the reasons stated herein, the Defendant's Motion for
Summary Judgment is GRANTED.
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