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Gomolka v.

October 7, 2005


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


David Gomolka has sued his former employer,, for age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621. Quotesmith has moved for summary judgment. For the reasons stated below, the Court grants Quotesmith's motion.


Gomolka, who was born on July 29, 1952, claims that Quotesmith fired him because of his age in violation of the ADEA. Quotesmith contends that it did not fire Gomolka because of his age, but because he failed to follow his supervisors' instructions.

Quotesmith is an Internet-based insurance company that enables customers and business owners to obtain instant quotes from over 300 insurance companies without involving commissioned salespeople. Gomolka began working for Quotesmith on October 5, 1998 as a customer service representative (CSR). In 1999, he was promoted to Policy Delivery Team Leader, a position involving collection of insurance policies sent to Quotesmith from outside insurance companies and delivered them to the CSRs he supervised. The CSRs then processed the insurance policies for delivery and mailed them to insureds. In April or May 2001, Quotesmith promoted Gomolka again, this time to the position of Director of New Accounts. In that role, Gomolka supervised four team leaders who oversaw various aspects of insurance policy processing.

In 2000, Quotesmith had a net operating loss of over eighteen million dollars and began making changes. It outsourced much of its application processing paperwork to outside agencies and reorganized the way CSRs processed policies. As a result of these changes, Quotesmith laid off twenty-five employees -- twenty-one were over forty years-old. Quotesmith also eliminated Gomolka's Director of New Accounts position and made him CSR Team Leader. In that role, he reported directly to Burke Christensen, Vice President of Operations, and indirectly to William Thoms, Executive Vice President, and Robert Blands, the company's CEO. Gomolka's new job required him to train the remaining CSRs on how to perform the duties of the terminated CSRs and to create binders collecting information processed by the outside agencies. Thoms, in particular, was concerned about Quotesmith's ability to process information from the outside agencies because the company was using new (and possibly unreliable) technology to obtain it.

Quotesmith claims that Thoms and Bland became progressively dissatisfied with Gomolka's performance as CRS Team Leader. On June 20, 2001, Thoms placed a letter in Gomolka's personnel file noting that he had carelessly prepared the binders. On September 19, Bland asked Gomolka to revise the computer screen used by CSRs, and Gomolka did not follow up on the request to Bland's satisfaction. On September 27, Gomolka attended a meeting with Thoms and Bland and admitted that he had not instituted a CSR training schedule as Thoms and Christensen had previously instructed. Thoms terminated Gomolka later that day.

Gomolka offers what he characterizes as evidence of Quotesmith's habitual discrimination against older employees. He presents the deposition of William Hemsworth, Quotesmith's former vice president of marketing, who was terminated a few months after Gomolka. Hemsworth claims that some time in 2001, he attended an executive meeting with Bland and Thoms and heard them discuss their dissatisfaction with a certain unnamed employee. Hemsworth Dep. at 62. In the course of the meeting, Hemsworth claims that Bland commented "on how old [the employee] was and that he was older than average." Id. at 63. Director of Human Resources, Rick Pipal, then said something to the effect of, "No, we can't talk about his age." Id. at 64. This left Hemsworth with the impression that "age was on Bland's mind." Id. Gomolka also presents the fact that twenty-one of the twenty-five employees Quotesmith laid off in 2001 were over the age of forty and that Quotesmith gave a severance package to a twenty-six year-old employee who was terminated for cause but did not give such a package to Gomolka.


Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In this case, the Court must view the facts in favor of Gomolka and draw all reasonable inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The ADEA provides that it is unlawful for an employer to discharge any individual because of his age. 29 U.S.C. § 623(a)(1). Gomolka has brought his age discrimination claim under a disparate treatment theory. Under this theory, he must prove that his age played a role in Quotesmith's decision making process and had a "determinative influence on the outcome."

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000). In other words, Gomolka must show that "but for" age discrimination, he would not have been fired. Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th Cir. 1997).

1. Direct Method of Proof

Gomolka can defeat Quotesmith's summary judgment motion by submitting evidence from which a jury reasonably could find that he was terminated because of age, either by the direct method of proof or by the indirect, McDonnell Douglas burden-shifting method. Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002). "The direct method of proof permits a plaintiff to show, by way of direct or circumstantial evidence," that his termination was motivated by an illegal purpose. Rhodes v. Ill. Dept. of Transp., 359 F.3d 498, 504 (7th Cir. 2004). Gomolka asserts that he has presented direct evidence in the form of the deposition testimony of William Hemsworth, who testified that when discussing his dissatisfaction with an employee, Bland remarked that the employee was "older than average." This remark is not direct evidence of age discrimination. Comments by superiors regarding older workers do ...

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