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MUDRON v. BROWN & BROWN

November 8, 2005.

PATRICK MUDRON, Plaintiff,
v.
BROWN & BROWN, Inc., Defendant.



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

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.

  LEGAL STANDARD

  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.

  DISCUSSION

  Brown & Brown is seeking summary judgment on Mudron's age discrimination claims (Count I) and Mudron's retaliation claim (Count II).

  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. 26). ...


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