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Cardenas v. Fleetwood

December 22, 2005


The opinion of the court was delivered by: Judge James B. Zagel


Plaintiff Abel Cardenas began working at Defendant Fleetwood Inc. in 1978, the year he arrived in this country from his native Columbia. He remained with Fleetwood for the next 24 years, until he was fired after missing work while attending his brother's funeral. Cardenas asserts that his discharge violated the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Fleetwood has moved for summary judgment, arguing that Cardenas has no evidence that his termination was the result of age discrimination and that his discharge resulted from his failure to follow Fleetwood's attendance and reporting policy.


Cardenas, born on October 27, 1952, began working for Fleetwood's predecessor company as a welder's assistant. Cardenas later became a welder, a position he held until the time of his discharge. Cardenas was responsible for producing equipment and machines such as rotofeeders and conveyors.

On the evening of January 24, 2002, Cardenas learned that his brother, who lived in Columbia, had committed suicide. Cardenas immediately purchased a ticket to fly to Columbia and be with his family and attend the funeral. Because he speaks only broken English, Cardenas asked his friend Angel Rosado, who is fluent in English, to call Fleetwood the next morning and explain the reason for his absence.

Jerry Svoboda, a Fleetwood leadman, received Rosado's call the morning of Friday, January 25. Svoboda claims that he had difficulty understanding the caller, and that the caller conveyed only that Cardenas would not be reporting to work. Svoboda informed Cardenas's manager, Ruben Filipponi, that Cardenas would be absent and Fleetwood excused Cardenas's absence for that day.*fn1

On Tuesday, January 29, Filipponi spoke with his supervisor and Fleetwood's business unit director, Vincent Jones, about Cardenas's absence. Filipponi explained that Svoboda had received a call indicating that Cardenas would be absent on Friday, but that he had no further contact from Cardenas. The following day Filipponi asked Director of Human Resources Zachary Volz whether he had received any messages from Cardenas. Neither Volz nor his assistant had heard from Cardenas. Jones also visited Volz that day to ask whether Cardenas had contacted Fleetwood. Volz again answered that he had not heard from Cardenas.

On Thursday, January 31, Jones informed Volz that he wanted to terminate Cardenas based on Fleetwood's "no-call no-show" attendance policy, which considers employees who fail to notify the company of their absence for three consecutive normal workdays as quitting without notice. Volz supported Jones's decision and called Cardenas at home. Volz left a voicemail message instructing Cardenas to call him. Cardenas's roommate, Carlos Ponton, received the message and immediately contacted Volz. Ponton was surprised to learn that Fleetwood did not know why Cardenas was absent; he believed Fleetwood had been informed on Friday of Cardenas's trip to Columbia. Ponton informed Volz that Cardenas had experienced a death in the family and would return to work the following Monday. Volz told Jones about his conversation with Ponton, but Jones did not reconsider his decision to terminate Cardenas's employment.

Cardenas returned to the country on Sunday, February 3, and reported to Fleetwood the following day. Cardenas was not permitted to work but was instructed by Filipponi to wait in the cafeteria until he was called to meet with Volz and Jones. During the meeting, Jones asked Cardenas where he had been and why he had not contacted the company, notwithstanding the fact that both Jones and Volz now knew of the reason for his absence. Cardenas responded that both Rosado and Ponton had contacted the company to explain his whereabouts. He also explained that his brother had committed suicide and that he had traveled to Columbia to make funeral arrangements. Cardenas offered Jones documentation of his trip, including airline ticket stubs and a copy of his brother's death certificate. At the conclusion of the meeting, Cardenas was instructed to leave and return the following day. After the meeting, Jones told Volz that he felt terrible about the decision but that he had no intention of changing his mind given Cardenas's failure to notify Fleetwood of his absence.

Cardenas returned the following day and met again with Jones and Volz. Jones and Volz again asked Cardenas why he failed to call Fleetwood about his absence. Cardenas was then terminated for job abandonment and Filipponi escorted Cardenas from Fleetwood's property.

It is not disputed that the procedure Cardenas relied on to inform his employer of his absence -- asking a friend to report in on his behalf -- was a common and accepted practice for reporting absences at Fleetwood. It is also undisputed that Cardenas had ample vacation, personal time and bereavement leave to cover his six-day absence and that Fleetwood's attendance policy permits employees to notify the company of their absence as soon as practical in the event of an emergency. Finally, it is undisputed that prior to his absence, Cardenas was performing to Fleetwood's satisfaction and had no disciplinary records during his 24-year career. Standard for Summary Judgment

Summary judgment is proper if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-33 (1986). A genuine issue of material fact exists when there is evidence on the basis of which a reasonable jury could find in the plaintiff's favor, allowing for all reasonable inferences drawn in a light most favorable to the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is not the time for credibility determinations or to "choose between competing inferences." Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir. 1993) (citation omitted). However, Cardenas must offer more than "[c]onclusory allegations, unsupported by specific facts" to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citation omitted).

A plaintiff may prove employment discrimination under the ADEA using either the "direct" or "indirect" method. Cianci v. Pettibone Corp., 152 F.3d 723, 727-729 (7th Cir. 1998).

"Under the direct method of proof . . . the plaintiff may show (either through direct or circumstantial evidence) that the employer's decision to take the adverse job action was motivated by an impermissible purpose, such as [ ] race or national origin or age." Id. at 727 (internal quotations and citation omitted). "A plaintiff can also prevail under the direct method of proof by constructing a 'convincing mosaic' of circumstantial evidence that 'allows a jury to infer intentional discrimination by the decisionmaker.'" ...

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