The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
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 ...