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Johnson v. Cook Inc.

November 25, 2008


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge


In July of 2005, plaintiff Robert Johnson applied for a sales training program with defendant Cook Incorporated ("Cook"), a medical device company. Plaintiff's application for that position was rejected upon initial review of his resume and cover letter. Subsequent to his rejection, plaintiff brought this action against defendant for age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.*fn1 Defendant now moves for summary judgment. I grant defendant's motion for the following reasons.


Summary judgment is proper when the pleadings and discovery, together with 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 Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640 (7th Cir. 2008). All affidavits, opposing or supporting summary judgment, must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. FED. R. CIV. P. 56(e).

I must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Hemsworth v., Inc., 476 F.3d 487, 490 (7th Cir. 2007). However, a party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact remaining for trial. Id.


Plaintiff applied for an entry-level sales position with defendant's START*fn2 program after seeing a classified advertisement for the position in the Chicago Tribune. (Cook 56.1 ¶ 3, 18, 31.) Cook hired different "teams" for its START program, and was hiring for START Team 2 at the time plaintiff applied. (Cook 56.1 ¶ 26.) The classified advertisement read as follows:

MEDICAL DEVICE SALES REPRESENTATIVE -- Looking for adventure and a challenging environment?

Leading medical device manufacturer is seeking individuals who have recently or are about to graduate from college. If you have ever thought about breaking into the medical device sales field this is your opportunity. Candidates must have a degree in biology or business. Must be willing to relocate and travel at a moments notice. Full benefits package, competitive salary, travel expenses paid. Interested applicants submit resume, cover letter, and salary expectations to Resumes without salary expectations will not be considered. Please use 'Smart Program'*fn3 as the subject line. (Pl.'s 56.1 ¶ 3.) In response to this advertisement, plaintiff submitted a cover letter and resume to Cook, which included a salary expectation of somewhere in the mid- to upper-$20,000 range. (Cook 56.1 ¶¶ 23-24.) The application identified plaintiff as someone with extensive sales experience, noting "about ten years of experience in sales, marketing, and teaching" in his cover letter and twenty years of experience in sales, among other things, in his resume. (Id.) Additionally, the job history portion of plaintiff's resume included descriptions of fifteen different jobs held in various fields for various entities, many for short periods of time. (Id. ¶ 25, 42.)

Cook's human resources personnel initially screened applicants for the START program based on their cover letters and resumes, availability, qualifications, and willingness to relocate. (Id. ¶ 21.) Candidates who made it through the initial screening were further evaluated by a phone interview, after which certain applicants were invited to the company for a formal interview. (Id.) Positions with START Team 2 were offered to those candidates who passed the formal interview. Cook did not ask for the ages of the candidates until after they were offered positions. (Id. ¶ 22.) Since plaintiff did not make it past the first phase of review, defendant did not know plaintiff's actual age at the time of rejection, although it necessarily knew he was over forty.*fn4 (Id. ¶ 38.) Of the over 140 sales representatives hired by Cook from May 2004 through May 2006, approximately 18% were at least 40 years old at the time they were hired.*fn5 (Cook 56.1 ¶ 6.)

David St. John works for Cook as a human resources generalist and has held that position for the last ten years. (Pl.'s 56.1 ¶ 1.) The majority of his time is spent reviewing applications for various positions at Cook, including positions for the START program. (Pl.'s 56.1, Ex. A, p. 6-7.) Mr. St. John does not specifically recall reviewing plaintiff's resume or cover letter at the time it was submitted, nor does he recall sending plaintiff's rejection letter. (Pl.'s 56.1 ¶ 8.) However, because the rejection letter closes with his signature, Mr. St. John believes he personally reviewed and rejected plaintiff's application. (Id.) Based on Cook's business practices and his personal experience with reviewing applications for the START program, Mr. St. John believes he rejected plaintiff's application because 1) his resume and cover letter emphasized significant sales experience, which Cook did not want for START program candidates, 2) for someone with sales experience, his low salary expectations indicated that he was unfamiliar with the medical devices sales market and that he was not highly motivated, and 3) his resume indicated that plaintiff was a job-hopper and therefore undesirable. (Cook 56.1 ¶¶ 27-28.)

Plaintiff filed charges of age discrimination with the EEOC. The EEOC investigated the charges, found reasonable cause to believe a violation of the ADEA occurred and issued plaintiff a right to sue letter.*fn6 Subsequently, plaintiff filed the present action.


The ADEA prohibits an employer from failing to hire an employee on the basis of his age. 29 U.S.C. ยง 623(a)(1). To succeed on a disparate treatment theory, an ADEA plaintiff must show that his age motivated the employer's decision not to hire. ...

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