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Koehler v. Ricoh, USA, Inc.

United States District Court, N.D. Illinois, Eastern Division

March 29, 2018

KEN KOEHLER, Plaintiff,
v.
RICOH USA, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          John J. Tharp, Jr., United States District Judge

         After a human resources investigation revealed that plaintiff Ken Koehler shipped personal items using the company FedEx account, defendant Ricoh USA, Inc. delivered Koehler a termination notice. But Koehler maintains that the results of the investigation were a pretext for the real reason Ricoh wanted to ship him away: his age. Koehler, who was 53 years old at the time, subsequently filed suit alleging that his termination violated the Age Discrimination in Employment Act. Ricoh now moves for summary judgment, arguing that Koehler cannot deliver on his claim.[1]

         I. BACKGROUND

         Ken Koehler worked for Ricoh for over 20 years. By 2014, his title was Operations Manager II (“OM II”) and he ran the legal document services production department in Chicago. In that capacity, Koehler supervised over 40 employees, was directly responsible for a substantial budget, and had wide discretion with regard to necessary business expenses.

         Ricoh has a computerized expense reimbursement system called Concur. Employees use Concur to seek reimbursement for out of pocket expenditures they make on the company's behalf. Although reimbursement requests submitted through Concur are reviewed and approved by an employee's immediate supervisor, approved reimbursements can be rejected by Ricoh's finance department. As part of their jobs, OM IIs periodically had to provide cash per diems to employees for use on business trips. Although OM II's were required to provide per diems out of pocket, Ricoh would sometimes reject Koehler's (and other OM IIs') efforts to be reimbursed via Concur. It was therefore common practice at Ricoh for employees to employ alternative methods of getting paid back, including mischaracterizing expenses in Concur. Indeed, Koehler's immediate supervisor, Rick Toumbs, told Koehler to “do whatever you have to do” to be reimbursed for out of pocket expenses. Deposition of Ken Koehler (“Koehler Dep.”) 51:12-52:21, ECF No. 62-2.

         In April 2014, one of the employees Koehler supervised, David Goldie, reported a number of violations of Ricoh company policy to human resources. Among other things, Goldie told HR that Koehler shipped a personal envelope using Ricoh's FedEx account and that an employee named Jose Chavarro had hours added to his time sheet that he did not actually work. According to Goldie, several of Chavarro's supervisors approved of the added hours. Ricoh designated Roy Williamson to investigate Goldie's allegations.

         At the time of the investigation, Williamson had been an HR investigator for two years. Williamson and Toumbs discussed the investigation; HR investigators typically kept Toumbs generally abreast of investigations of his employees as they proceeded. The investigation was extensive; Williamson interviewed 13 people (some multiple times), reviewed eight types of records and documents, and ultimately drafted a report assessing the veracity of each of Goldie's allegations. In May 2014, Williamson interviewed Koehler about Goldie's accusations. Koehler admitted to Williamson (and does not dispute now) that he used Ricoh's FedEx account to make personal shipments on 5 or 6 occasions over a period of several years. Koehler told Williamson that he only did so because Ricoh would not reimburse him for certain out of pocket business expenses via Concur. Williamson subsequently found documentation indicating that Koehler had used Ricoh's FedEx account to send an envelope to his son. After the interview, Koehler called Toumbs, who recalls only that he was made aware of the existence of an investigation into Koehler's use of the company FedEx account. Deposition of Rick Toumbs (“Toumbs Dep.”) 97:22-98:18, ECF No. 62-3. Toumbs did not independently investigate misuse of the FedEx account, nor did he take action against Koehler until Williamson's investigation into all of Goldie's allegations concluded. While Williamson's investigation was ongoing, Toumbs gave Koehler an overwhelmingly positive performance review and Koehler received a raise in his yearly salary.

         Also in May 2014, Williamson interviewed Chavarro, who told Williamson that several of his superiors (which did not include Koehler) had added 5 to 10 hours per week that he had not worked to his time sheets. Chavarro's superiors denied that time Chavarro did not work had been added to his time sheets. Williamson discovered that 185 hours had indeed been manually added to Chavarro's time cards, but badge swipes and cell phone records revealed that Chavarro actually worked at least 95.5 of those hours. Williamson was not able to conclude whether or not Chavarro worked the remaining 89.5 hours. Records show, however, that time was added to Chavarro's time sheets on days when Ricoh was closed, and at other times that suggested that Chavarro did not actually work all of the hours on his time sheets (e.g., on one day, 12.25 hours were added to Chavarro's time sheets by one of his superiors at 1:55 p.m., when Ricoh had only been only been open for a few hours). At the time of the investigation, Chavarro reported to Koehler, although Chavarro was employed in the “sales” branch of Ricoh, while Koehler was employed in the “operations” branch of Ricoh.

         Williamson's investigation ended in July 2014. Williamson recommended that Koehler be terminated, he averred, in order to comport with the way Ricoh treated other employees who had violated its Code of Ethics by committing theft. Ricoh's Code of Ethics specifically provided:

Employees must protect Company assets and resources. Illegal or improper use of such assets and resources is prohibited. . . . As a Company employee, you have access to many Company assets and resources including . . . mail resources. You are expected to use all Company assets and resources solely for Company business purposes unless you obtain authorization in advance from your manager and provide appropriate reimbursement to the Company for any approved non-business use.

Pl's Statement of Facts ¶ 6, ECF No. 62. Williamson's report on the investigation indicated that if Koehler was not terminated for theft, he should be issued a “Letter of Concern” reprimanding him for misusing company resources. Williamson Report D0487, ECF No. 65-6. After receiving Williamson's recommendation, Toumbs and his superior, John Hart, agreed that Koehler should be terminated for his Code of Ethics violation. On July 21, 2014, Koehler was called into a meeting with Toumbs and HR employee Sara Marrero. Toumbs and Marrero informed Koehler that he was being terminated for his personal use of the FedEx account. Toumbs was in tears at the meeting, and Marrero told Koehler that “senior leadership” disagreed with the decision to fire him. Koehler Dep. 65:3-18. Marrero's notes regarding Koehler's termination included Koehler's age, 53. She told Koehler that, due to his age and tenure with the company, he would be provided with severance benefits notwithstanding his for cause termination. Koehler was ultimately replaced with a 38 year-old employee who Toumbs had praised in a performance evaluation, some two-and-a-half years earlier, for her “energy and pace.” Maribel Gonzalez Appraisal Review D1209, ECF No. 65-15.

         Koehler subsequently filed suit against Ricoh, alleging that he was fired due to his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. Discovery ensued, and Ricoh now moves for summary judgment.

         II. DISCUSSION

         Under the ADEA, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623. These protections are afforded only to employees who are at least 40 years of age, and age must be the “but-for” cause of the challenged action. 29 U.S.C. § 631(a); Carson v. Lake Cty., 865 F.3d 526, 532 (7th Cir. 2017). “[I]n the ADEA context, it's not enough to show that age was a motivating ...


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