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Howard Fleishman v. Continental Casualty Company

November 22, 2011


The opinion of the court was delivered by: Judge Edmond E. Chang


Plaintiff Howard Fleishman alleges that his former employer, Defendant Continental Casualty Company, fired him in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.*fn1 Continental moves for summary judgment on all counts. R. 66. For the reasons discussed below, Continental's motion is granted.


In deciding this summary judgment motion, the Court views the evidence in the light most favorable to Fleishman. Continental is a member of, and provides property and casualty insurance operations for, the CNA Insurance Companies. R. 68, Def.'s Stmt. of Facts (DSOF) ¶ 2. In 1984, Continental hired Fleishman as a trial attorney in its Chicago Staff Counsel Office. Id. ¶ 3. As a trial attorney at Continental, Fleishman defended workers' compensation claims filed against Continental's insureds. Id. In 1998, David Izzo became the Managing Trial Attorney for Continental's Chicago Staff Counsel Office. Id. ¶ 4. Izzo supervised the attorneys in the Office, including Fleishman. Id. ¶ 5. Izzo reported to Jacqueline Johnson, Assistant Vice President of Staff Counsel, who oversaw Continental's Chicago Staff Counsel Office. Id. ¶ 6.

In July 2003, Fleishman took a medical leave of absence due to a brain aneurysm. DSOF ¶ 7. His medical condition caused him to take intermittent leaves of absence for about one year. Id. Fleishman returned to work in June 2004. Id. According to Fleishman, Izzo approached him in 2004 and offered him an option to retire with a severance package. R. 87 (Pl.'s Resp. DSOF) ¶ 11. Fleishman was not interested in retiring and continued to work as a workers' compensation attorney at Continental. Id.

In the first quarter of 2005, Continental created a Major Case Unit (MCU) for the purpose of handling high-value claims, such as workers' compensation claims with potential losses exceeding $250,000. DSOF ¶ 12. Fleishman was assigned to defend workers' compensation claims through the MCU. Id. Thus, the MCU Claims Department became one of Fleishman's internal customers. Id. ¶ 13. The MCU was led by Todd Lewis (Claims Director) and Nanette Husnick (Claims Manager). Id. Fleishman also had several customers outside of the MCU. Id. ¶ 14.

In mid-2005, Izzo began receiving complaints from Fleishman's customers about Fleishman's work performance. DSOF ¶ 20. Izzo investigated, and determined that Fleishman's written reports were not timely or thorough. Id. ¶¶ 21-22. Fleishman's 2005 performance evaluation (completed by Izzo) reflects the performance problems. Id. ¶ 28. Izzo and Assistant Vice President Johnson continued to receive complaints about Fleishman's performance in 2006. Id. ¶¶ 23-25. For instance, Claims Manager Husnick complained to Johnson that Fleishman's reports were not thorough and Fleishman's approach to handling claims was not sufficiently aggressive. Id. ¶ 23. Rina Patel, a non-MCU customer, told Izzo that she did not want Fleishman to work on files for a certain client because Fleishman's performance was so unsatisfactory. Id. ¶ 25. Patel requested that these files be transferred to another workers' compensation attorney in the Staff Counsel Office. Id.

In September 2006, Izzo placed Fleishman on a Performance Improvement Plan (PIP). DSOF ¶ 35. The PIP indicated that if Fleishman failed to make significant improvements within sixty days, he may be fired. Id. ¶ 36. A few months later, Claims Director Lewis complained to Izzo and Johnson that Fleishman's reports lacked useful analyses and recommendations. Id. ¶ 40. In January 2007, Lewis and Husnick notified Izzo that they no longer wanted Fleishman to work on any MCU cases. Id. ¶ 43. Izzo decided that it was time to terminate Fleishman's employment at Continental. Id. ¶ 46. Izzo consulted Johnson and Lisa Harrell, Assistant Vice President in Human Resources, and they agreed that Izzo's decision to fire Fleishman was appropriate. Id. Fleishman was fired on January 25, 2007. Id. ¶ 47.


Summary judgment is required "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All facts, and any inferences to be drawn from them, must be viewed in the light most favorable to the non-moving party. Wis. Cent. Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008). The evidence presented at this stage must comport with the Federal Rules of Evidence and be admissible at trial, United States v. 5443 Suffield Terrance, Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010), or it must consist of affidavits or declarations "made on personal knowledge, set[ting] out facts that would be admissible in evidence, and show[ing] that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). The court does not assess the credibility of witnesses or weigh evidence, Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005), and will not grant summary judgment if "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).


The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against workers who are 40 or older on the basis of their age. 29 U.S.C. § 623(a)(1), 631(a). An employee suing under the ADEA may show discrimination directly or indirectly. Van Antwerp v. City of Peoria, 627 F.3d 295, 297 (7th Cir. 2010). Fleishman has chosen the direct method and can meet his burden of proof by "offering direct evidence of animus -- the so-called 'smoking gun'-- or circumstantial evidence which establishes a discriminatory motive on the part of the employer through a longer chain of inferences." Id. at 297-98; Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1118 (7th Cir. 2009) ("Under the direct method, the inference that the employer acted based on the prohibited animus has to be substantially strong."). Fleishman relies on the latter approach, and, therefore, may present any of three broad types of circumstantial evidence: (1) evidence of suspicious timing, ambiguous statements, behavior toward or comments directed at other employees over the age of 40, and other bits and pieces from which an inference of discriminatory intent might be drawn; (2) evidence showing that Continental systematically treated other, similarly situated employees under 40 years old better; and (3) evidence that Fleishman suffered an adverse employment action and that Continental's justification is pretextual. Silverman v. Bd. of Educ. of City of Chicago, 637 F.3d 729, 734 (7th Cir. 2011) (internal citations omitted). "Whatever circumstantial evidence is offered, however, must point directly to a discriminatory reason for the employer's action." Van Antwerp, 627 F.3d at 298 (quotation omitted); see also Petts v. Rockledge Furniture, 534 F.3d 715, 720 (7th Cir. 2008) (a plaintiff relying on circumstantial evidence must construct a convincing mosaic that allows a jury to infer intentional discrimination by the decisionmaker).

Here, Fleishman alleges that two remarks made by his supervisor, David Izzo, are enough circumstantial evidence of age discrimination to defeat summary judgment. Pl.'s Br. at 11. A remark can provide an inference of discrimination when it was "(1) made by the decision maker, (2) around the time of the decision, and (3) in reference to the adverse employment action." Hemsworth v., 476 F.3d 487, 491 (7th Cir. 2007). Fleishman first points to the instance in 2004 when Izzo asked Fleishman if he wanted to retire. This remark, however, was made about three years before Izzo made the decision to fire Fleishman. Not only does the sheer passage of time undermine the inference of discrimination, without more there is no connection between the content of the remark (asking whether Fleishman wanted to retire) and the decision to fire him. This remark does not raise an inference of discriminatory intent.

The second comment was allegedly made in 2005 -- two years before Fleishman was fired. Fleishman claims that when he and Izzo met to discuss Fleishman's performance evaluation, Izzo informed him that Assistant Vice President Jacqueline Johnson decided that Fleishman would not receive a raise or bonus that year. Pl.'s Resp. DSOF ¶ 29. Referring to Johnson's decision, Izzo stated, "hey, she's out to get me, too." Id. Again, this remark was made long before Izzo decided to fire Fleishman. See Hemsworth, 476 F.3d at 491 (concluding that president's comment that the employee who had suffered a stroke looked tired and old was not sufficient evidence of discrimination because comment was made more than a year before employee's termination); Markel v. Bd. of Regents of Univ. of Wis. Sys., 276 F.3d 906, 910-11 (7th Cir. 2002) (finding supervisors' statements "nearly two months" before employee's termination were not contemporaneous to the termination and thus were not evidence of discrimination). Moreover, "she's out to get me, too" is an ambiguous remark in this context, where (even under Fleishman's version of events) there are no other facts to suggest that Izzo was complaining that Johnson was engaging in age discrimination, and that ...

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