UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HERMAN FULWILEY, and LEO )

WILLIAMS, )

)

Plaintiffs, )

)

v. ) CAUSE NO.: 2:13-CV-4-TLS

)

HADADY CORPORATION, )

)

Defendant. )

OPINION AND ORDER

The Plaintiffs, Herman Fulwiley and Leo Williams, are pursuing claims against Hadady

Corporation under the Age Discrimination in Employment Act (the ADEA). The Plaintiffs claim

that the Defendant’s failure to offer them employment in 2012 was due to their age—Fulwiley

was 60 years old and Williams was 56. The Defendant has moved for summary judgment,

asserting that it is undisputed that reasons unrelated to the Plaintiffs’ ages motivated its decision.

For the reasons set forth in this Opinion and Order, the Court finds that no reasonable jury could

find that the Defendant discriminated against the Plaintiffs on the basis of their age. The Court

will enter judgment in favor of the Defendant.

SUMMARY JUDGMENT STANDARD

Summary judgment is warranted when “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). Summary judgment is the moment in litigation where the nonmoving party is

required to marshal and present the court with evidence on which a reasonable jury could rely to

find in his favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). A court
should only deny a motion for summary judgment when the nonmoving party presents

admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep’t of Corrs.,

652 F.3d 726, 731 (7th Cir. 2011) (citing United States v. 5443 Suffield Terrace, 607 F.3d 504,

510 (7th Cir. 2010); Swearnigen–El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852, 859 (7th Cir.

2010)). A court’s role in deciding a motion for summary judgment “is not to sift through the

evidence, pondering the nuances and inconsistencies, and decide whom to believe. [A] court has

one task and one task only: to decide, based on the evidence of record, whether there is any

material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920

(7th Cir. 1994). Material facts are those that are outcome determinative under the applicable law.

Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). “Irrelevant or unnecessary facts do not deter

summary judgment, even when in dispute.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d

1099, 1104 (7th Cir. 2008). 

FACTUAL BACKGROUND

A. The Defendant’s Hiring Practices

The Defendant manufactures and distributes steel fabrications and parts for locomotives

and railcars. The Defendant’s workforce is generally divided between professional staff

consisting of engineers and managers, and support staff made up of production floor employees.

Jane Sullivan is the Defendant’s President. Before becoming President, she served in other

capacities, including as the Defendant’s Human Resources Manager.

The Defendant hires employees directly and through temporary staffing agencies.

However, all job applications must be completed at one of the Defendant’s facilities. An

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employee in the human resources department, either April Szablewski or Rose Umlauf, provides

a job application form to the requesting individual and explains that the application must be

completed on-site and returned to Szablewski or Umlauf. Applications are retained for one year,

but considered active for 30 days, meaning that the Defendant only considers applications

submitted within the prior 30 days when filling open positions. 

After Szablewski or Umlauf initially review a submitted application for completeness,

they may talk to the applicant. This initial “interview” examines employment gaps, tenure,

reasons for leaving, performance, attendance, and transportation. If an applicant completes the

initial interview, Szablewski or Umlauf will review the results of the interview with Sullivan.

When time does not allow for this short interview, the applicant is informed that all applications

go through a review process and that someone from Human Resources will contact him or her if

the Company has a position that it deems a good fit. Szableski, who is a Human Resources

Generalist, does not have authority to extend a job offer without consulting with either Umlauf, a

Human Resources Supervisor, or Sullivan. In almost all instances, Sullivan is involved in the

hiring decision.

Since 2014, the Defendant has kept a record of every application it has received. Before

2014, the Defendant kept an EEO application log, but it only listed the people who submitted an

application but were not hired. For example, the EEO Application Log from 2012 tracks the

date, name, and referral source for each unsuccessful applicant.

B. The Two-Week Notice Requirement

According to Sullivan, the Defendant does not generally rehire employees who resigned

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from the company because there is a greater likelihood that these employees will separate from

their employment again. The Defendant has a written resignation policy that requires a resigning

employee to provide at least two weeks’ advance notice of his intent to resign. The Defendant

has a practice, but not a written policy, of prohibiting the rehire of employees who resigned

without providing such notice. To that end, the Defendant keeps a record of whether an

employee is considered ineligible for rehire upon separation from employment. Since 2009, the

Defendant has designated 47 employees as ineligible for rehire based on their failure to provide

two weeks’ notice. Of these 47, 7 reapplied for employment, including Plaintiff Fulwiley. Three

of the 7 were rehired and 4 were not. Of the 4 not selected for rehire, only the Plaintiff was over

40 years old; the others were 27, 23, and 19. Of the 3 hired, 1 was over 40 years old.

One of the 3 that the Defendant rehired, Brandon Merriweather, had resigned because he

was being harassed and threatened by a follow coworker, who was also a family member.

Although the Defendant offered to take action to deal with Merriweather’s concerns and resolve

the problem, he opted to resign instead. Merriweather was rehired at the age of 24 because

Sullivan was personally aware of the special circumstances that existed at the time of his

resignation. The Defendant also rehired Felipe Fonseca. He personally pleaded with Sullivan to

be rehired due to his desperate financial situation. He was 58 years old when the Defendant

rehired him. The circumstances of the third hire, which occurred in 2010, are not explained by

the parties.

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C. Plaintiff Fulwiley’s 2008 Employment and Resignation

In July 2008, Fulwiley applied to be a machine/fork lift operator for the Defendant. In

August 2008, the Defendant hired him as a temporary worker through Davis Staffing. On

September 12, 2008, having worked for about six weeks for the Defendant, Fulwiley informed

the Defendant that he was resigning his assignment. Fulwiley maintains that he continued to

work for two weeks following his notice. On his last day of employment, he talked to Sullivan

and she told him he could always come back to work for the Defendant.

According to the Defendant’s records, Fulwiley did not report for work or call in to

report his absence for the next three days after announcing his intention to resign. Consistent

with the Defendant’s attendance policy, the Defendant terminated Fulwiley’s assignment to the

Company after he did not return to the Company for three consecutive working days. Davis

Staffing’s records reflect that on September 18, 2008, a Davis Staffing employee entered a note

in Fulwiley’s file stating that he was a “no call no show” (aka “ncns”) on September 15, 2008,

and his last day worked (aka “ldw”) was on September 12, 2008. (Def.’s Ex. G, ECF No. 75-8.)

Davis Staffing issued Fulwiley his final paycheck on September 19, 2008.

The Defendant designated Fulwiley as “ineligible for rehire” due to his failure to

complete his two-week resignation period. Davis Staffing also designated Fulwiley as ineligible

for rehire due to his failure to give appropriate notice of his resignation.

D. Plaintiff Williams’s 2008 Employment

In August 2008, Williams applied for and obtained a position through Sedona Staffing.

Two months later, the Defendant hired Williams as its own full-time employee. In December

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2008, Williams was laid off as part of a large scale reduction in force brought about by the

recessing economy.

E. Plaintiff Fulwiley’s Application for Employment in 2012

On May 2, 2012, Fulwiley came to the Defendant’s facility, along with Williams and a

third individual, Edward Floyd, indicating that they were looking for employment. Szablewski

provided Fulwiley with a job application and explained the Defendant’s general application

process, including that if the Company had an available position that would be a good fit for him,

someone from Human Resources would contact him. Fulwiley told Szablewski that he

previously worked at the Defendant company. Szablewski took Fulwiley’s completed application

and informed him it would be under advisement and proceed through the general review process.

Sullivan reviewed Fulwiley’s application that same day. As part of her review, Sullivan

looked back at the personnel records from Fulwiley’s prior assignment at the company.

Comparing Fulwiley’s 2008 and 2012 applications, Sullivan realized that the pre-August 2008

work histories did not match. Specifically, Fulwiley listed a job on his 2012 application that he

had not listed on his 2008 application. This was the job he held immediately prior to his 2008

assignment with the Defendant. By not disclosing the position, Fulwiley had also failed to

inform the Defendant that he was eligible for recall to his previous employment. Sullivan

believed that Fulwiley intentionally omitted that information in 2008 so that the Defendant

would not be aware that he was subject to recall by his previous employer, and thus might leave

his position with the Defendant within a short time. Sullivan also observed that Fulwiley had

been marked as ineligible for rehire in the Defendant’s human resources system due to his failure

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to complete his two-week resignation period in 2008. Sullivan instructed Szablewski that

Fulwiley would not be rehired because he left without providing two weeks’ notice and because

there was an inconsistency between his 2008 and 2012 applications.

After Fulwiley, Williams, and Floyd completed their applications and left, the Defendant

called Floyd to ask if he would submit to a physical because he was being offered a position.

Fulwiley drove Floyd back to the facility.

Later, when Fulwiley did not hear back from the Defendant regarding a position, he

returned to the facility to check on his application. He maintains that during a second follow-up

visit to the facility, he inquired again whether Sullivan had reviewed his application. Fulwiley

testified that Szablewski “said, No, but then she replied—she said, Oh Herman, I think it’s your

age.” (Fulwiley Dep. 51, ECF No. 78-2.)1

 Williams testified that he was with Fulwiley when

Szablewski made an age-related comment. He stated that she made the comment when he came

to the facility with Fulwiley and Floyd to apply for employment. “[T]hey told him that we

was—I think they’re going another way, you’re too old, or something like that.” (Williams Dep.

62, ECF No. 75-9; see also id. at 67 (“They told me they’re going another way—they’re going

another way, a way with younger people, and they said they weren’t hiring.”); id. at 70 (“Then

the lady said that we are starting a new thing . . . and they’re not dealing with older individuals.

They’re dealing with younger individuals.”).) 

Szablewski denies that she made the statement, or that she even informed Fulwiley that

the Defendant was not going to offer him a position.

1 Later in his deposition, Fulwiley stated that Szablewski made the comment when he returned to

the facility so that Floyd could receive forms for the physical.

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F. Plaintiff Williams’s Application for Employment in 2012

The Defendant’s EEO Application log shows that it received applications from five

applicants on May 2, 2012: Fulwiley, Floyd, Eric Tinoco, Claude Clark, and David Austin.

Sullivan reviewed the applications of all five of these individuals on May 2, 2012. She does not

recall receiving or reviewing a job application from Williams. Sullivan did not talk to Williams

about his interest in employment on May 2, 2012. The EEO Application Log does not list

Williams as submitting an application on May 2, 2012, or at any other date in 2012. 

Williams provided the following testimony regarding his application:

Q. Do you know if you filled out an application in 2012?

A. Yeah, I believe I did. I’m not sure now, Miss. I’m not sure.

Q. So if I told you Hadady didn’t have an application for you, would you be

surprised by that?

A. Yeah, I would.

Q. Even though you don’t remember whether you filled one out or not?

A. Yeah, because I believe I did fill one out. I really do believe that. I’m not

sure now, because I was already hired in before they laid me off.

Q. Is it possible that you didn’t fill one out because you figured you had

already been hired once before?

A. That’s possible.

(Williams Dep. 68–69, ECF No. 75-9.)

ANALYSIS

A plaintiff suing under the ADEA may establish discrimination directly or indirectly, the

latter through the approach used in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Cerutti v. BASF Corp., 349 F.3d 1055, 1060 (7th Cir. 2003). “[W]hether a plaintiff proceeds

under the direct or indirect method of proof, the ultimate standard is the same: the plaintiff must

demonstrate that the employer would not have made the adverse employment decision in

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question but for his membership in a protected class.” Cerutti, 349 F.3d at 1061–62; see also

Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009) (holding that in ADEA disparate

treatment cases, “[a] plaintiff must prove by a preponderance of the evidence (which may be

direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision”).

A. Direct Method

“A plaintiff proceeding under the direct method survives summary judgment by creating

triable issues as to whether discrimination motivated the adverse employment action.” Nagle v.

Village of Calumet Park, 554 F.3d 1106, 1114 (7th Cir. 2009). Under the direct method, a

plaintiff can establish discriminatory intent by relying on direct or circumstantial evidence that

“the decisionmaker” acted for a prohibited reason. Rogers v. City of Chi., 320 F.3d 748, 753–54

(7th Cir. 2003); see also Atanus v. Perry, 520 F.3d 662, 671 (7th Cir. 2008) (“The focus of the

direct method of proof . . . is not whether the evidence offered is ‘direct’ or ‘circumstantial’ but

rather whether the evidence ‘points directly’ to a discriminatory reason for the employer’s

action”). Relevant circumstantial evidence includes suspicious timing, ambiguous statements,

behavior toward or comments directed at other employees in the protected group, and other facts

from which a jury can infer discriminatory intent. Darchak v. City of Chi. Bd. of Educ., 580 F.3d

622, 631 (7th Cir. 2009). 

The Plaintiffs submit that Szablewski’s statement is direct evidence that their age was the

basis for the Defendant’s hiring decision. For purposes of summary judgment, the Court assumes

that Szablewski made the statement, even though she adamantly denies it. Generally speaking,

however, “comments by a non-decision maker do not suffice as evidence of discriminatory

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intent.” Lucas v. Chi. Transit Auth., 367 F.3d 714, 730 (7th Cir. 2004). Remarks can raise an

inference of discrimination when they are made (1) by the decision-maker, (2) around the time of

the decision, and (3) in reference to the adverse employment action. Bagwe v. Sedgwick Claims

Mgmt. Servs., Inc., — F.3d —, No. 14-3201, 2016 WL 304043, at *11 (7th Cir. Jan. 26, 2016).

Alternatively, “[c]at’s paw liability may be imposed on an employer where the plaintiff can show

that an employee with discriminatory animus provided factual information or other input that

may have affected the adverse employment action.” Bordelon v. Bd. of Educ. of the City of Chi.,

— F.3d —, No. 14-3240, 2016 WL 411026, at *6 (7th Cir. Feb. 3, 2016) (alterations and

emphasis omitted).

Szablewski was not the decision-maker. The Plaintiffs do not dispute this, or contend that

Szablewski harbored discriminatory animus and provided Sullivan with factual input or other

information that impacted Sullivan’s decision. Rather, they assert that Szablewski’s remark is

evidence of discrimination because Szablewski was relaying a message from the decision-maker,

Sullivan. The Plaintiffs rely on Makowski v. SmithAmundson LLC, 662 F.3d 818 (7th Cir. 2008),

to argue that Szablewski was sufficiently involved in the employment decision so as to make her

account of her supervisor’s decision a binding admission of the Defendant. Makowski dealt with

the admissibility of a statement under Federal Rule of Evidence 801(d)(2)(D), which excludes

from the definition of hearsay a statement offered against an opposing party that “was made by

the party’s agent or employee on a matter within the scope of that relationship.” The

Makowski court determined that the statement of a human resources director about the reasons

behind an employment decision was not hearsay because she was involved in the

decisionmaking process affecting the employment action. 662 F.3d at 823. Specifically, her

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duties included regular consultations regarding decisions to eliminate positions and terminate

employees to ensure compliance with federal anti-discrimination laws, making her a part of the

firing process. Id. In addition, she was asked to confer with outside labor and employment

counsel regarding the decision to terminate the employee. Id.

Makowski is not applicable to the facts of this case. In the statement that Fulwiley

attributes to Szablewski, she does not say that she is relaying the results of Sullivan’s decision.

Rather, she indicates that Sullivan did not even look at the applications yet, and then appears to

suddenly surmise that it might be because of Fulwiley’s age. Although in Williams’s version,

Szablewski appears to be speaking about a collective decision. But even if Szablewski were

reciting an account of Sullivan’s decision-making, the situation is distinguishable from

Makowski because the undisputed record shows that Szablewski’s involvement in the Plaintiffs’

application process was limited to providing them with blank applications, collecting Fulwiley’s

completed application and giving it to Sullivan, and receiving direction from Sullivan that

Fulwiley would not be rehired because he left without two weeks’ notice and he had an

inconsistency between his 2008 and 2012 applications. As such, her duties did not affect the

decision-making process. See Makowski, 662 F.3d at 823 (stating that the employee was

“involved in the decisionmaking process leading up to” the termination); see also Bordelon, —

F.3d —, 2016 WL 411026, at *6 (noting that an employee’s statements are not admissible under

Rule 801(d)(2)(D) unless her duties “encompass some responsibility related to ‘the

decisionmaking process affecting the employment action’”) (quoting Stephens v. Erickson, 569

F.3d 779, 793 (7th Cir. 2009)). Because Szablewski’s duties did not encompass decisionmaking

responsibility, she was not speaking within the scope of her employment. Accordingly, her

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statement is not admissible evidence of the Defendant’s, i.e., the decision maker’s, motivation. 

The Plaintiffs assert that Szablewski’s comment, in addition to being a direct admission,

is circumstantial evidence of discrimination under the direct method. The Plaintiffs compare

their case to Volovsek v. Wisconsin Department of Agriculture, Trade and Consumer Protection,

344 F.3d 680 (7th Cir. 2003). In that case, the plaintiff overheard two of her supervisors

comment about “keeping them barefoot and pregnant” immediately after they told her she was

being denied a promotion. 344 F.3d at 690. In equating their case to Volvosek, the Plaintiffs

completely overlook the fact that Szablewski was not the decision maker. To prevail on their age

discrimination claim, the Plaintiffs have “to provide direct or circumstantial evidence that the

decisionmaker has acted for a prohibited reason. A decisionmaker is the person responsible for

the contested decision.” Schandelmeier-Bartels v. Chi. Park Dist., 634 F.3d 372, 378–79 (7th

Cir. 2011) (quotation marks omitted). The Plaintiffs have not presented evidence that Sullivan,

or anyone who had an affect on or was involved in the decisionmaking process, made a comment

regarding their ages. 

Neither do the Plaintiffs have any other evidence, direct or circumstantial, from which a

rational jury could determine that the Plaintiffs’ ages were the determining factor in the

Defendant’s decision not to offer them employment. The Defendant made offers of employment

to two of the five applicants who submitted applications on May 2, 2012. One of them, Claude

Clark, was 57 years old. Neither of them had been marked as ineligible for rehire in the

Defendant’s HR system. To counter, the Plaintiffs challenge aspects of the Defendant’s hiring

procedures and its explanations as being a pretext for discrimination. For reasons discussed

below, these arguments fall short of supporting an inference of discrimination.

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“Pretext means a dishonest explanation, a lie rather than an oddity or an error. Pretext is

more than a mistake on the part of the employer; it is a phony excuse. Showing pretext requires

proof that the defendant’s explanation is unworthy of credence.” Faas v. Sears, Roebuck & Co.,

532 F.3d 633, 642 (7th Cir. 2008) (citations, alterations, and quotation marks omitted); see also

Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000) (stating that even if an employer’s reason

for terminating an employee is “mistaken, ill considered or foolish,” pretext has not been shown

as long as the employer “honestly believed those reasons”). It is undisputed that the Defendant’s

practice is to designate employees who do not complete their two weeks’ notice period as

“ineligible for rehire.” Since 2009, the Defendant has marked 47 former employees ineligible for

rehire. Fulwiley asserts that he provided adequate notice, and thus disputes that he should have

been marked as ineligible. However, none of the evidence suggests that Sullivan did not believe

that Fulwiley had been properly designated as ineligible for rehire in the Defendant’s system.

Nor is there evidence to suggest that there was no basis in fact for this belief. Sullivan saw the

notation when she reviewed Fulwiley’s personnel file in 2012. While Fulwiley may dispute the

accuracy of the Defendant’s records based on his own recollection of the circumstances surround

his resignation, he has no evidence to show that Sullivan did not honestly trust the accuracy of

these records.2

Fulwiley argues that other employees were rehired despite failing to provide two weeks’

notice prior to their resignation, thus asserting that the reason was insufficient to motivate the

2 Davis Staffing’s records correlated with the Defendant’s records regarding the timing of

Fulwiley’s departure. Fulwiley argues that the timing of the Defendant’s verification of his records with

Davis Staffing shows pretext, as the Defendant did not confirm these dates until later. This timing does

not suggest pretext, as Sullivan did not rely on Davis Staffing’s records, but on her own company’s

records as she viewed them on May 2, 2012.

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Defendant’s decision not to hire him. However, the record demonstrates that the Defendant

consistently applied its rehiring practice, and that exceptions were limited. On one occasion

when the Defendant rehired an employee considered ineligible for rehire, Sullivan was

personally made aware of an extenuating circumstance that she believed excused the individual’s

failure to complete the resignation period. In another situation, the employee convinced Sullivan

to rehire him because he was under extreme financial strain. The Plaintiff did not make any

personal appeal to Sullivan regarding extenuating circumstance. Thus, even though exceptions

were occasionally made, the Plaintiff has not presented any evidence that the Defendant should

have considered one for him, especially after Sullivan compared Plaintiff Fulwiley’s 2008 and

2012 applications and discovered a discrepancy. He does not even suggest what his personal

appeal might have been.

The Plaintiffs attempt to raise an issue of pretext with respect to Williams by asserting

that a genuine issue of material fact exists as to whether Williams completed an application in

2012. In support, Williams cites his deposition testimony that he would be surprised if he did not

submit an application. Williams also notes that, because the Defendant did not deviate from its

normal document retention policy, the application would not have been found during discovery

even if Williams had submitted one; and since he is entitled to all have all reasonable inference

and disputes of fact viewed in his favor, there is a genuine issue of material fact. In reality,

Williams was less than certain about whether he completed and turned in an application in 2012.

He testified that he believed he did, but that he was not sure. He admitted that it was possible

that he did not because he had previously worked for the Defendant.

On the other side, it remains undisputed that the Defendant’s 2012 EEO log does not

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include Williams’s name, and that neither Szablewski nor Sullivan reviewed an application for

Williams. Because the Defendant has carried its burden under Rule 56 to show that Williams did

not submit an application, Williams must do more than simply show that there is some

metaphysical doubt as to the material facts. Scott v. Harris, 550 U.S. 372, 380 (2007). “[B]efore

a non-movant can benefit from a favorable view of the evidence, it must show that there is some

genuine evidentiary dispute. ‘Genuine,’ in this context, means ‘reasonably contestable.’” SMS

Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009) (quoting

Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997)). And “[w]hen opposing

parties tell two different stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that version of the facts for purposes of

ruling on a motion for summary judgment.” Scott, 550 U.S. at 380. As for document retention,

the Plaintiffs have not pointed to a single pertinent document that was destroyed or that the

Defendant failed to produce. It is pure speculation to assert, then, that Williams’s application, if

it indeed existed, was the sole exception. See Argyropoulos v. City of Alton, 539 F.3d 724, 732

(7th Cir. 2008) (stating that the court does not draw inferences that are supported by “only

speculation and conjecture”). 

In any event, “[t]he only concern in reviewing an employer’s reasons for [an employment

action] is the honesty of the employer’s belief.” Balderston v. Fairbanks Morse Engine Div. of

Coltec Indus., 328 F.3d 309, 323 (7th Cir. 2003), and the Plaintiffs have not established that the

Defendant did not genuinely believe that Williams failed to make it aware that he was seeking a

position in 2012. Likewise, it is immaterial to the pretext analysis that two other employees hired

by the Defendant were not required to submit job applications because the record is undisputed

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that these employees personally spoke with Sullivan to request that they be rehired, and that

Plaintiff Williams never spoke with Sullivan to request rehire.

When the Plaintiffs’ factual assertions, construed in their favor, are considered together,

there is not enough evidence from which a reasonable jury could infer that the Plaintiffs’ ages

were the but-for cause for the Defendant’s decision not to extend offers of employment.

B. Indirect Method

The Plaintiffs have not shown that similarly-situated younger applicants were treated

more favorably, a necessary element of a prima facie case of discrimination under the indirect

method. See Hutt v AbbiVie Prods. LLC, 757 F.3d 687, 693 (7th Cir. 2014). Fulwiley asserts that

the appropriate comparator to him was Floyd, the substantially younger applicant the Defendant

offered employment to in May 2012. However, it is undisputed that Floyd had not previously

worked for or resigned from the Defendant, and he certainly was not marked as ineligible for

rehire in the Defendant’s system. This is a material, differentiating distinction. See Naficy v. Ill.

Dep’t of Human Servs., 697 F.3d 504, 512 (7th Cir. 2012) (noting that while comparators need

not be identical, the distinctions between the plaintiff and her would-be comparators were

material because they went to heart of why the plaintiff received different treatment); Coleman v.

Donahoe, 667 F.3d 835, 841 (7th Cir. 2012) (stating that plaintiff must usually show that

comparator “engaged in similar conduct without such differentiating of mitigating circumstances

as would distinguish . . . the employer’s treatment of them”). Thus, Floyd was not comparable to

Fulwiley, and the selection of Floyd over Fulwiley does not support an inference that age was a

determining factor. See Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 675–76 (7th Cir. 2012)

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(emphasizing that similarly situated employee must be similar in all material respects to suggest

that the plaintiff was singled out for discriminatory reason). 

Williams has not identified any other applicant for whom Sullivan did not review a

written employment application or speak to directly regarding their interest in employment. This

places him in a category all by himself. “[W]ithout similarly situated comparators, no inference

of discrimination arises and [the Plaintiffs’] disparate treatment claims fail under the indirect

method.” Chaib v. Indiana, 744 F.3d 974, 984 (7th Cir. 2014). 

CONCLUSION

For the reasons stated above, the Court GRANTS the Defendant’s Motion for Summary

Judgment [ECF No. 74]. The Clerk will enter judgment in favor of the Defendant and against the

Plaintiffs.

SO ORDERED on March 2, 2016.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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