The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Brown & Brown,
Inc.'s ("Brown & Brown") motion for summary judgment and motions
to strike Plaintiff's expert's declaration. For the reasons
stated below, we grant Brown & Brown's motion for summary
judgment and Brown & Brown's motions to strike Mudron's expert
declarations. We also deny Mudron's motion for an adverse
inference regarding the deposition testimony of J. Hyatt Brown,
and Brown & Brown's motion to strike plaintiff's materials in
opposition to summary judgment. BACKGROUND
Plaintiff Patrick Mudron ("Mudron") is a former employee of
Brown & Brown, a Florida insurance company doing business in
Illinois. Mudron alleges that prior to working for Brown & Brown,
he was employed by Brown & Brown's predecessor, John Manner
Insurance Agency ("JMI"), from 1977 until JMI was purchased by
Brown & Brown in September 2002. Mudron also alleges that upon
Brown & Brown's purchase of JMI, he was required to sign an
employment agreement with Brown & Brown stating that his clients
belonged to Brown & Brown, before Mudron could be employed by
Brown & Brown. Mudron claims that at the time of JMI's
acquisition by Brown & Brown, there were four outside sales
agents, only two of which, including Mudron, were over the age of
fifty. Mudron alleges that after the acquisition, Brown & Brown
representatives never met with Mudron or the other sales agent
over age fifty, but that they did meet with the two younger sales
agents to discuss "compensation, business and future plans."
(Compl. Par. 13).
Mudron alleges that on April 11, 2003, Brown & Brown terminated
the employment of both Mudron and the other sales agent over age
fifty. Mudron additionally alleges that Brown & Brown replaced
Mudron with a new sales agent, aged thirty-five, who had
"substantially less sales experience" than Mudron. (Compl. Par.
16). Mudron further alleges that Brown & Brown has hired several
"substantially younger employees" since his termination. (Compl.
Par. 22). Mudron claims that on July 17, 2003, he filed a "Charge of
Discrimination" with the Equal Employment Opportunity Commission
("EEOC"), in which he alleged that Brown & Brown engaged in age
discrimination. (Compl. Par. 26). Mudron further claims that
after his filing with the EEOC, Brown & Brown filed a "baseless
complaint in state court, alleging that Mudron breached his
employment agreement with Brown & Brown." (Compl. Par. 27).
Mudron then filed the instant action, in which he includes claims
of age discrimination under the Age Discrimination in Employment
Act of 1967, 29 U.S.C. §§ 621 et seq. (the "ADEA") (Count I),
and an ADEA retaliation claim (Count II). Brown & Brown now move
for summary judgment on all counts.
Summary judgment is appropriate when the record, viewed in the
light most favorable to the non-moving party, reveals that there
is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
In seeking a grant of summary judgment, the moving party must
identify "those portions of `the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the absence of
a genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). This
initial burden may be satisfied by presenting specific evidence
on a particular issue or by pointing out "an absence of evidence to support the non-moving party's
case." Id. at 325. Once the movant has met this burden, the
non-moving party cannot simply rest on the allegations in the
pleadings, but, "by affidavits or as otherwise provided for in
[Rule 56], must set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56(e). A "genuine issue"
in the context of a motion for summary judgment is not simply a
"metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Rather, a genuine issue of material fact exists when "the
evidence is such that a reasonable jury could return a verdict
for the non-moving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The court must consider the evidence as a
whole, in a light most favorable to the non-moving party, and
draw all reasonable inferences that favor the non-moving party.
Anderson, 477 U.S. at 255.
Brown & Brown is seeking summary judgment on Mudron's age
discrimination claims (Count I) and Mudron's retaliation claim
I. Age Discrimination Claims (Count I)
Mudron claims that "Brown & Brown intentionally discriminated
against [Mudron] on the basis of age in violation of the ADEA
when it terminated him without cause" and replaced him with
younger employees. (Compl. Par. 22). The ADEA prohibits employers from discrimination against employees
because of their age. 29 U.S.C. § 623(a). For an employee to
defeat a motion for summary judgment on an ADEA claim, the
employee may use the direct or indirect method of proof.
Schuster v. Lucent Technologies, Inc., 327 F.3d 569, 573 (7th
Cir. 2003). A plaintiff bringing an ADEA claim can also succeed
by showing a "pattern or practice" of age discrimination by the
defendant. See Adams v. Ameritech Services, Inc., 231 F.3d 414,
422 (7th Cir. 2000). Mudron claims that he can prevail under
each of these approaches. (Resp. 10).
A. Direct Method of Proof
To prevail using the direct method of proof, a plaintiff must
"essentially [show] an admission by the decision-maker that his
actions were based on the prohibited animus." Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000). Given
that such direct statements are rare "in today's politically
correct workplace environment," a plaintiff can also satisfy the
direct method showing a "`convincing mosaic' of circumstantial
evidence that `allows a jury to infer intentional discrimination
by the decision-maker.'" Jordan v. City of Gary, Ind.,
396 F.3d 825, 832 (7th Cir. 2005) (citing Rhodes v. Ill. Dept. of
Transp., 359 F.3d 498, 504 (7th Cir. 2004)). This circumstantial
evidence, however, must directly show that there was a
"discriminatory reason [behind] the employers' action." Id.
In the instant action, Mudron alleges a number of reasons in
support of its opposition to Brown & Brown's motion for summary judgment. First,
Mudron claims that John Manner ("Manner"), Mudron's direct
supervisor and the original owner of JMI, had told Mudron that he
was in "full compliance with his validation agreement when
Defendant fired him," and based on such a statement, Mudron
contends that there is "compelling evidence of discrimination and
pretext." (Resp. 11). Mudron also claims that Brown & Brown has
provided "conflicting evidence" in regard to a number of issues
in this action, which Mudron alleges is "strong evidence of
pretext." (Resp. 12). Specifically, Mudron alleges that two of
Brown & Brown's "biggest reasons" for firing Mudron "d[id] not
even appear in Defendant's EEOC position statement," and that
Brown & Brown has presented "conflicting evidence about who
actually made the decision" to fire Mudron. (Resp. 12). Mudron
also alleges that Brown & Brown has stated that it did not have a
progressive discipline policy when in fact it did have one, and
that Brown & Brown failed to follow this policy, which Mudron
contends is "evidence of discrimination." (Resp. 12). In a
similar vein, Mudron claims that Brown & Brown "failed to follow
its termination policy" when it did not include the reason for
Mudron's termination in his personnel file. (Resp. 12). Finally,
Mudron claims that the reasons for Mudron's termination that were
listed on his "Termination Worksheet and Separation Form" were
different from those given to the EEOC, and that Brown & Brown
failed to adequately explain "why Defendants did not contest
Plaintiff's . . . application for unemployment benefits if he had
in fact been terminated for serious misconduct." (Resp. 12-13).
To begin, Mudron points to no direct "admission by [Brown &
Brown showing] that [its] actions were based on the prohibited
animus." Radue, 219 F.3d at 616. The closest thing to such an
admission is a statement by J. Hyatt Brown ("Brown"), the CEO of
Brown & Brown. In a deposition, Brown stated that "one of the
things that we do is hire young people, and young people would be
27, 26 to 32 to 35" and that "[w]e like to have people that are . . .
four to eight years out of college and have either a sales
background or a financial background." (P's SOF Par. 26).
However, in this same deposition, Brown stated that this was not
a written policy, that "each profit center manager may have an to
opportunity to find people that are older, younger, what have
you," and that "the most important thing is, [whether] the
[recruits] can make it happen for" the company. (P's SOF Par.