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Mikicich v. Chicago Mercantile Exchange

May 31, 2006


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant Chicago Mercantile Exchange, Inc.'s ("CME") motion for summary judgment. For the reasons stated below, we grant the motion for summary judgment.


Plaintiff John Mikicich ("Mikicich") alleges that in 1996, at the age of 46, he began working as a Senior Purchasing Agent for the corporate predecessor of CME. Mikicich claims that he was promoted to the position of Assistant Manager-Strategic Sourcing and then to the position of Operations Procurement Manager-Strategic Sourcing in the Finance Division. Mikicich alleges that on December 15, 2004, he had a discussion with another CME manager over the phone. According to Mikicich, unbeknownst to him, the other manager was speaking to and listening to Mikicich over a speaker phone. CME claims that during the phone conversation, Mikicich made a profane statement about a female co-worker who happened to be in the room where the speaker phone was located and heard the alleged profane statement over the speaker phone. Mikicich claims that the next day, he was accused by the CME Human Resources Manager ("HR Manager") of using offensive language in reference to the female co-worker during the phone conversation. Mikicich claims that he was contacted at home the next day and told that his employment was terminated. Mikicich subsequently brought the instant action and includes in his complaint a claim alleging a violation of Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (Count I), and a claim alleging discrimination based on his gender in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (Count II). CME has moved for summary judgment on both claims.


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 nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record 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; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).


CME argues that it is entitled to summary judgment on the ADEA claim (Count I) and the Title VII claim (Count II). In order to defeat a defendant's motion for summary judgment, a plaintiff bringing an ADEA discrimination claim or a Title VII discrimination claim can proceed under the direct method of proof or the indirect method of proof. Raymond v. Ameritech Corp., 442 F.3d 600, 610 (7th Cir. 2006). Under the direct method of proof, the plaintiff must establish a discriminatory motivation through direct or circumstantial evidence. Rudin v. Lincoln Land Cmy. Coll., 420 F.3d 712, 720 (7th Cir. 2005). Direct evidence of discrimination would constitute "an admission by" the defendant that the adverse employment action was taken "on the basis of" his membership in a protected class. Raymond, 442 F.3d at 610. A plaintiff can present circumstantial evidence under the direct method of proof, but such evidence must be sufficient to create "a triable issue of whether the adverse employment action of which [the plaintiff] complains had a discriminatory motivation." Rudin, 420 F.3d at 721. The Seventh Circuit has indicated that circumstantial evidence can create a triable issue only if there is a "'convincing mosaic' of circumstantial evidence that allows a jury to infer intentional discrimination by the decisionmaker." Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 504 (7th Cir. 2004); Raymond, 442 F.3d at 610(stating that to proceed under the direct method of proof a plaintiff must point to evidence that is a "basis upon which to rationally infer [the defendant's] discriminatory animus").

To proceed under the indirect method of proof, a plaintiff must first establish a prima facie case by showing that: "(1) []he is a member of a protected class; (2) []he was performing at a level that met h[is] employer's legitimate expectations; (3) []he was subject to an adverse employment action; and (4) []he was treated differently than a similarly situated person outside h[is] protected class[]." Raymond, 442 F.3d at 610. If the employer states a "legitimate, nondiscriminatory reason" for the employment action, the burden shifts to the plaintiff to show that the reason is a pretext for unlawful discrimination. Id.

I. Direct Method of Proof

Mikicich argues that he can proceed under the direct method of proof for his ADEA claim. However, there is a complete absence of evidence in this case that would indicate CME held any animus toward Mikicich because of his age. Mikicich argues that the court can infer such an animus because CME's decision to fire him was baseless. However, the undisputed evidence indicates otherwise. Mikicich admits that the CME Harassment Policy ("Policy") prohibited unlawful discrimination and harassment and that the CME Employee Handbook ("Handbook") lists as unacceptable conduct: "[t]hreatening, harassing, intimidating or coercing others verbally or physically." ( R SF Par. 14, 15). Mikicich admits that Cheryl Seiffert ("Seiffert"), the subject of the alleged profanity during the phone conversation, and Bob Petrowski ("Petrowski"), who was speaking to Mikicich over the speaker phone, claim that they heard Mikicich make the profane statement at issue. The undisputed evidence also shows that CME received a complaint from Seiffert about the alleged profane statement. ( R SF Par. 32, 33). Thus, the undisputed evidence shows that CME had a bona-fide reason for terminating Mikicich's employment and it is clear that the decision to terminate his employment was not baseless as he contends. While Mikicich argues that CME erred in concluding that his misconduct constituted a violation of the Policy and Handbook, no reasonable trier of fact could conclude other than it was at least possible that Mikicich violated the Policy and Handbook and that the CME's decision to fire Mikicich was not baseless.

Mikicich also argues that it was unreasonable to terminate his employment for an infraction of the Policy and Handbook involving profanity because profanity was allegedly common in the workplace at CME. Mikicich may disagree with CME's decision to terminate his employment and disagree with Seiffert's and Petrowski's version of what was said during the telephone conversation. However, whether CME made a mistake in believing Seiffert and Petrowski and whether CME acted too harshly against Mikicich in light of other alleged profanity at the workplace are not issues that are pertinent in the instant action. The instant action is premised upon the ADEA and Title VII, which protect employees from discrimination based upon the employees' age and other protected characteristics such as gender. 29 U.S.C. § 621 et seq.; 42 U.S.C. § 2000e et seq. The above-mentioned statutes do not protect employees in general from all potentially unjust treatment in the workplace. See Cardoso v. Robert Bosch Corp., 427 F.3d 429, 435 (7th Cir. 2005)(stating that Title VII does not authorize courts to act as a "'super-personnel department' intervening whenever an employee feels he is being treated unjustly"); Jordan v. City of Gary, Ind., 396 F.3d 825, 835 (7th 2005)(stating in regard to ADEA and Title VII claims that a "court does not sit as a super-personnel department that re-examines an entities business decisions")(quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986)). We will not act as a general appeals board for CME's personnel decisions and decide whether Mikicich violated the Policy and Handbook or whether his punishment should have been less extreme.

Mikicich has not provided any arguments in his answer to CME's motion for summary judgment regarding his Title VII claim and thus apparently concedes that he cannot proceed forward with that claim. There is not sufficient evidence in this case that would enable a reasonable trier of fact to infer that CME had an animus against Mikicich because of his age or gender. Therefore, we ...

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