As already explained, Dell’Aringa has failed to meet his
burden of creating a reasonable inference that Ameritech’s stated
reasons for failing to promote him were a pretext for intentional
discrimination. In particular, though it is true that Ameritech
hired a woman to fill one of the Global Account Manager spots,
Dell’Aringa offers no evidence to suggest that sex played any
role in Ameritech’s decision. To the contrary, Ameritech hired
men for two of the three open Global Account Manager positions.
(A. St. 9976, 80). Here too no reasonable juror could find that
Ameritech’s non-promotion of Dell’Aringa was based on his sex.

Conclusion

Dell’Aringa has failed to present evidence from which any
reasonable inference of either age or sex discrimination may
fairly be drawn. To frame the matter in Rule 56 terms, he has
not shown a genuine issue of material (that is, outcome-
determinative) fact, so that Ameritech is entitled to a judgment
as a matter of law. Its summary judgment motion is granted in

its entirety, and this action is dismissed with prejudice.

Cte DG ctan

Milton I. Shadur
Senior United States District Judge

Date: September 19, 2002

19


from Human Resources before firing Dell’Aringa. While those
communications were not documented, Dell’Aringa offers no
evidence that obtaining such clearance over the phone was
improper or out of the ordinary. Further, despite Benner’s
inability to recall the date of his last communication with Human
Resources, the record does not contain any independent evidence
to contradict Ameritech’s explanation for the delay.

Moreover, an employer’s delay in disciplining an employee’s
misconduct, while the employee is allowed to continue working for
a short period, does not create a material issue of fact as to
pretext (see Sample, 61 F.3d at 549, responding “So what?” to
just such a contention). Dell’Aringa’s position is essentially
that Ameritech committed discrimination by not firing him
immediately after learning that he lied. But the delay at issue
(note also that the six weeks encompassed the holiday season)
does not create even a reasonable inference that Dell'Aringa's
admitted dishonesty was not the reason for his termination.

Next Dell’Aringa, citing Horwitz v. Holabird & Root, 312

Ill. App. 3d 192, 197, 726 N.E. 2d 632, 636 (1%* Dist. 2000),
claims that the lie could not have prompted his termination
because Benner and Calderone did not take active steps to set the
record straight with Sears~-something that he says amounted to an
implicit affirmance or ratification of his conduct (D. Mem. 5-6).

Even apart from the totally dissimilar situation at issue in

13


Herriman (“Herriman”), and other Sears executives who expressed
their anger about Ameritech’s poor handling of past projects (D.
Resp. §33). Among other comments Herriman said (A. R. St. 420):

I don’t know why they gave [the RFI] to you because you

don’t stand a snowball’s chance in hell of obtaining

the bid.?
In the circumstances Dell’Aringa believed that Ameritech would
not be given a serious chance to bid on the RFI (D. St. 430).

Later that day Dell’Aringa reported Sears’ dissatisfaction
with Ameritech to Regional Vice President Benner (id. 428).
According to Dell’Aringa, he also told Benner about the RFI and
said that in light of Sears’ attitude about Ameritech, he did not
intend to submit a bid for the project (id. 9§29-30).* Benner
said he would communicate with Herriman but did not respond to
Dell’Aringa’s plans for the RFI (id. 431).

In December 2000 Benner learned that another vendor was
seeking to partner with Ameritech on the “Sears project,” and he

met with Calderone and Dell’Aringa about the RFI (A. St. §935,

3 [Footnote by this Court] Ameritech argues the statement
is inadmissible as hearsay (A. R. St. §20). Not so: It is
offered not for its truth or falsity but for the relevant purpose
of showing Dell’Aringa’s belief that Sears would not seriously
consider Ameritech’s bid. So the statement is admissible for the
non-hearsay purpose of showing its effect on the listener.

* Ameritech denies that Dell’Aringa mentioned anything to
Benner about the RFI or his intention not to submit a bid during
that November conversation (A. R. St. 9927, 29-31). While this
opinion properly credits Dell’Aringa’s version, the resolution of
that dispute does not change the end result.

4


inexperience with network accounts (D. Mem. 8). In addition he
urges that he deserved priority because Ameritech had an
established preference for promoting current employees and
Tokarski was an outside hire (id.).

But this Court “does not sit as a super personnel department
to review an employer's business decisions” (Ransom v. CSC
Consulting, Inc., 217 F.3d 467, 471 (7 Cir. 2000), citing
McCoy, 957 F.2d at 373). To the contrary, “[e]mployers may act
for many reasons, good and bad; they may err in evaluating
employees' strengths; unless they act for a forbidden reason,
these errors (more properly, differences in assessment) do not
matter" (Baron v. City of Highland Park, 195 F.3d 333, 341 (7
Cir. 1999) quoting Kuhn v. Ball State Univ., 78 F.3d 330, 332
(7 Cir, 1996)).

As before, Dell’Aringa’s task is to show not that he was
actually more qualified for the position, but rather that
Ameritech lied about its reason. And in that respect nothing
calls for a reasonable inference that Dell’Aringa was so much
better qualified than Tokarski that Benner and Calderone could
not have honestly believed she was the superior candidate.

Added evidence further supports the conclusion that age
played no role in Ameritech’s decisionmaking process.
Dell’Aringa was first hired by Ameritech when he was 55 years old

and was promoted to Global Account Executive at age 57. As this

17


subjected to an adverse employment decision and (4) that he was
treated less favorably than similarly situated and younger
employees (Richter, 142 F.3d at 1028). If Dell’Aringa were to
meet those requirements, a rebuttable presumption of
discrimination would arise and the burden of production would
shift to Ameritech to articulate some non-discriminatory reason
for its actions (id.). If Ameritech did so the presumption would
dissolve, and Dell'Aringa would have to show that Ameritech's
asserted reason was pretextual (id.): either (1) that Ameritech
was more likely motivated by a discriminatory reason than by its
proffered reason or (2) that its proffered reason is unworthy of

credence (McCoy v. WGN Cont'] Broad. Co., 957 F.2d 368, 372 (7th

Cir. 1992)).

Dell’Aringa clearly meets the first and third requirements
of his prima facie case on both his termination and failure-to-
promote claims: He was over 40 and suffered adverse employment
decisions. But in both instances Dell’Aringa has failed to meet
the fourth requirement because he has not shown that a younger
and similarly situated employee was treated more favorably. Even
more importantly, Dell’Aringa has failed to create an issue of
material fact as to either his termination or the refused
promotion that could undermine Ameritech’s stated reasons for

those actions such that a reasonable jury could find that


Resources and Legal Departments before taking action (id. 450,
52). Although Benner does not recall the precise date on which
that clearance was obtained (A. R. St. 954), on January 22, 2001
Benner and Calderone met with Dell’Aringa and terminated his
employment (A. St. §50). Benner told Dell’Aringa that he was
being fired because he lied to Sears (id.).

While those events were taking place, Ameritech had begun
interviewing applicants for three vacant Global Account Manager
positions, including the manager for the Sears account (A. St.
(77). Dell’Aringa interviewed for that position on December 5,
2000 (id. 64). Two of the Global Account Manager positions were
then filled by men: Leonard Thomas, then aged 35, and Ray
Engelsman, then aged 53 (id. 4974, 78). Christine Tokarski
(*Tokarski”), a 49 year old woman, was interviewed on
December 20, 2000 and was then hired as the Global Account
Manager for the Sears and Zurich accounts (id. 9969, 72).

In early January 2001 Calderone told Dell’Aringa that he had
not been selected for the Sears-Zurich Global Account Manager
position (A. St. 468). Calderone explained that Tokarski had
been chosen because Benner and Calderone believed she had more
experience in working with network and large global accounts (id.
q71).

During his time at Ameritech Dell’Aringa never witnessed any

negative treatment of Ameritech employees on the basis of age or


38). Although the parties dispute whether Dell’Aringa had
previously told Benner that he did not plan to submit a bid (A.
R. St. 9927, 29-31), it is undisputed that at that December
meeting Benner told Dell’Aringa that it was critical to respond
to the RFI and that Dell’Aringa would have to work hard to do so
(D. St. 935).

Later that day Dell’Aringa called McLinden at Sears and told
him what all parties admit was a known lie: that Ameritech
required more time to respond to the RFI because of a fire at
Ameritech’s Ohio facility (D. St. §37). McLinden was skeptical
about Dell‘Aringa’s excuse but extended Ameritech’s deadline to
respond to the RFI (id. 9938, 39).

Within a week Dell’Aringa told both Calderone and Benner
that he had lied to Sears about the fire (A. St. 4944, 45).
While Benner’s immediate response to learning of Dell’Aringa’s
conduct is disputed (A. R. St. 943), Ameritech’s uncontradicted
testimony is that on December 18 Benner and Calderone determined
that Dell’Aringa should be fired for breaching Ameritech’s Code
of Business Conduct (“Code”) by lying to Sears (A. St. 46).
Although that written Code did not specifically prohibit lying to
customers, Dell’Aringa understood that it was probably against
Ameritech policy (D. Resp. 410).

Benner had ultimate authority to fire Dell’Aringa (D. St.

49), but he says that he orally sought clearance from the Human


Court has said in Zielonka v. Topinka, 28 F.Supp.2d 1081, 1086
(N.D. Ill. 1998) (internal quotation marks omitted) :

According to Wolf v. Buss (America) Inc., 77 F.3d 914
923-924 (7 Cir. 1996), the fact that the complaining
employee was initially hired when he was well into the
protected age class, although not conclusive, is
somewhat indicative of [the employer's] lack of
discriminatory intent in later adverse actions.

Relatedly, the fact that Benner made the employment decisions
while he too was well into the protected class “is also a
significant factor in evaluating the discrimination claim” (id.,
citing Richter, 142 F.3d at 1032).

In sum, when all the evidence is taken into account, no
reasonable juror could find that Dell’Aringa was terminated or
denied a promotion because of his age. Hence his ADEA claims
fail in their entirety.

Sex Discrimination

What has been said as to Dell’Aringa’s ADEA claims is
equally fatal to his claim that Ameritech’s failure to promote
him violated Title VII. As with his age discrimination claims,
Dell’Aringa has attempted the McDonnell Douglas burden-shifting
method, and there is no need to repeat the steps entailed in that
process. Indeed, in this instance it makes eminently good sense
to cut to the chase by moving directly to the ultimate
discrimination question rather than dwelling on Dell'Aringa's
satisfaction or lack of satisfaction of the prima facie case

requirements (see n.6).

18


him because of his age and sex and had terminated him in

violation of ADEA.
Age Discrimination

To prevail on his age discrimination claims, Dell’Aringa
must prove® that his age “actually played a role in [Ameritech’s
decisionmaking] process and had a determinative influence on the

outcome” (Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 141 (2000), quoting Hazen Paper Co. v. Biggins, 507 U.S.

604, 610 (1993)). At the summary judgment stage, the required
showing of age discrimination can be made in one of two ways:
with direct or circumstantial evidence that the adverse
employment action would not have been taken but for plaintiff's
age (the so-called direct method) or through the McDonnell
Douglas burden-shifting method (Richter v. Hook-SupeRx, Inc., 142
F.3d 1024, 1028 (7th Cir. 1998)). Here Dell‘Aringa attempts the
latter approach.

Under that formulation Dell’Aringa must establish a prima
facie case by demonstrating (1) that he was a member of the
protected class (age 40 or over), (2) that he was performing his

job to his employer's legitimate expectations, (3) that he was

5 At this summary judgment stage, of course, Dell’Aringa
need not “prove” or “establish” or “show” anything. Instead he
must merely demonstrate the existence of a genuine issue of
material fact to defeat Ameritech's summary judgment motion.
Although this opinion nonetheless most frequently employs one of
those quoted terms because that is the terminology used by the
cited cases, this Court has consistently imposed that lesser
burden on Dell’Aringa in testing his claims.

8


© Minute Order orm (06/97) /

ed States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other
emeet toutes |X. Milton I. Shadur tog ute oer
CASE NUMBER \ \ 01 C 4995 DATE 9/19/2002
CASE Richard A. Dell’ Aringa vs. SBC Global Services, Inc.
TITLE

Un the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) qo Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) a Answer brief to motion due___. Reply to answer briefdue_____.

(4) gq Ruling/Hearing onset for__—_at

(5) a Status hearing[held/continued to] [set for/re-set for]on___—ssetfor_——_att

(6) o Pretrial conference[held/continued to] [set for/re-set for]on__——setfor_—at_

(7) ia) Trial[set for/re-set for]on_ at

(8) Q [Bench/Jury trial] [Hearing] held/continued to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4¢n) OLocal Rule 41.1 OFRCP41(a\(1) OO FRCP41(a)(2).

(0) =o [Other docket entry] Enter Memorandum Opinion and Order. Ameritech’s motion for summary

judgment is granted in its entirety, and this action is dismissed with prejudice.(8-1)

al) @ {For further detail see order attached to the original minute order.]

‘Document
Number

D0)

No notices required, advised in open court,

No notices required.
\ number of notices

Notices mailed by judge’s staff. SEP 29 2002

Notified counsel by telephone. date dosketed

wv | Docketing to mail notices.

¥_| Mail Ao 450 form. Lye DUA ay eee desing’ Ypury initials
Copy to judge/magistrate judge.  3n
nr . ate led notice
courtroom BE le She zg date mailed note
SN deputy’s ~
initials qo
ko CET Daate/time received in
central Clerk’s Office railing deputy ntas



Brizzolara and Dell’Aringa violated Ameritech’s Code, that Code
does not specifically prescribe the discipline for violating its
precepts (D. Mem. 11 n.4). Nor does the Code act as a strict
sentencing guideline that inhibits (let alone eliminates)
Ameritech’s discretion to sanction employees according to their
individual violations. Dell’Aringa offers no evidence to call
into question Ameritech’s view that Dell’Aringa’s dishonesty
significantly reduced its confidence in his integrity in a way
that Brizzolara’s disclosure of confidential, but truthful,
information did not.

But even if Dell’Aringa had succeeded in showing Brizzolara
was a similarly situated employee, Dell’Aringa still has not
raised the necessary inference that Ameritech’s reason for firing
Dell’Aringa was pretextual. Remember that Ameritech’s stated
reason for terminating Dell’Aringa is that he lied to a customer.
Surely an employee’s dishonesty is a legitimate business reason
for termination that can satisfy an employer’s burden under the
McDonnell Douglas framework (see, e.g., Sample v. Aldi Inc., 61
F.3d 544, 548-49 (7th Cir. 1995)). Dell’Aringa does not deny
that he lied or that the lie was against Ameritech policy (D.
Resp. §10). Instead he argues that Ameritech’s reason is itself
a lie unworthy of credence.

First, Dell’Aringa points to the six week delay between

Ameritech's learning about his lie and his termination, noting

11


Ameritech’s reasons were a pretext.® This opinion considers each
employment action in turn.
Termination

Dell’Aringa ascribes his January 2001 termination at age 58
to a violation of ADEA. But Dell’Aringa’s prima facie case is
flawed because he has failed to show that he was treated less
favorably than a similarly situated employee. Such an employee
must have “engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish
their conduct or the employer's treatment of them” (Peele v.

Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002), quoting

and stressing that language from Radue v. Kimberly-Clark Corp.,

219 F.3d 612, 617-18 (7th Cir. 2000)).

Dell‘Aringa identifies Brizzolara as a substantially younger
employee who was not disciplined for his alleged disclosure of
information about the United Airlines account (D. Mem. 14). But
Brizzolara’s conduct is legitimately distinguishable from
Dell’Aringa’s. Unlike Dell’Aringa, Brizzolara did not

disseminate false information. Even accepting that both

®° As the ensuing discussion reflects, the same analysis
that defeats Dell'Aringa on the issue of pretext vel non is also
fatal to the second element of a prima facie case--that relating
to the employer's legitimate expectations. But as both this
Court (see, e.g., Peyton v. Otis Elevator Co., 72 F.Supp.2d 915,
919 (N.D. Ill. 1999)) and our Court of Appeals (see, e.g., Olsen
wv. Marshall & Ilsley Corp., 267 F.3d 597, 600-01 (7TM Cir. 2001)
have frequently done, this opinion has moved directly to the
dispositive failure to show pretext.

10


sex (A. St. 984, 85). But Dell’Aringa believes that he was the
victim of age and sex discrimination because Ameritech failed to
promote him to the Global Account Manager position and instead
gave the job to Tokarski, a woman nine years his junior who he
believed was less qualified than he (D. Resp. 490).

As to his termination-based claim of age discrimination,
Dell’Aringa points to the treatment accorded Ameritech’s former
Global Account Manager for United Airlines Ed Brizzolara
(“Brizzolara”) (A. St. 9490-92). Brizzolara (age 46) was
implicated in the release of confidential and unfavorable
information about the United account to a Chicago alderman in
violation of Ameritech’s Code (D. St. §79). When that
information appeared in a front-page Chicago Tribune article
mentioning Ameritech, United's CEO complained to Ameritech
because he was furious that the information had been leaked (id.
478). Brizzolara was then removed as the account manager for the
United account but was appointed to an active global sales
director position (id. 482). No further disciplinary action was
taken because of the United incident (id. 83)

As for the procedural preconditions to this action,
Dell’Aringa filed a timely BEOC charge of age and sex
discrimination. After the EEOC then issued a right-to-sue
notice, Dell’Aringa timely initiated this action on June 28,

2001, alleging that Ameritech had unlawfully failed to promote


Executive (id. 911). According to a written evaluation by the
executive who served as his direct superior until November 2000,
Dell’Aringa was meeting both his targets and Ameritech’s
expectations in his new position (D. St. §§10, 11). Then
beginning in November 2000 Dell’Aringa was supervised by
Ameritech’s Global Sales Director Barbara Calderone
(“Calderone”), who was in turn supervised by Regional Vice
President of Global Markets Tom Benner (“Benner’) (A. St. 423).

In September and October 2000 Ameritech offered early
retirement packages to all 34 executive employees at the facility
where Dell‘Aringa worked (id. 925). Dell’Aringa and 24 other
executive employees, men and women over a range of ages, elected
not to take the early retirement option (id. 452, 54). Three
Global Account Managers were among the nine employees who did
accept the retirement package (id. 958).

About November 16, 2000 Dell’Aringa was temporarily assigned
to be the Global Account Manager for Ameritech’s Sears and Zurich
accounts, filling a vacancy left by the previous manager’s
retirement (A. St. 921). On November 17 Dell’Aringa attended a
meeting at Sears at which Kevin McLinden (“McLinden”) presented a
Request for Information (“RFI”) for Sears’ new telecommunications
system to Dell’Aringa and a number of competing vendors (id.
q{28-31).

Dell’Aringa then met with McLinden'’s superior, Rory


Horwitz, which really renders it valueless as authority here, any
such notion of affirmance or ratification of an acknowledged lie
to an important customer is wholly unpersuasive on the issue of
pretext.

By the same token, Dell‘'Aringa's contention that neither
Ameritech nor Sears suffered any harm as a result of the lie
misses the mark entirely. Even if Dell’Aringa views the incident
differently, “to survive summary judgment he must call into
question the honesty of [Benner’s] belief that it was
significant” (Sample, 61 F.3d at 549). Nothing that Dell'Aringa
has proffered impugns the honesty of Ameritech's understandable
position that Dell'Aringa's admitted lie fatally impaired
Benner's confidence in his honesty and integrity.

Failure To Promote

Dell’Aringa also asserts that Ameritech’s decision to hire
Christine Tokarski rather than to promote him to the Global
Account Manager position violated ADEA. Here Dell’Aringa has
failed to meet the fourth factor of the prima facie case for a
different reason. To satisfy that factor, an inference of
discrimination igs reasonable only when the person favored over
the plaintiff is “substantially”--at least ten years--younger
(Hartley _v. Wisconsin Bell, Inc., 124 F.3d 887, 892 (7th Cir.
1997). Tokarski, nine years younger than Dell’Aringa (and also

within ADEA's protected age category), falls shy of that ten year

14


Dell’Aringa. Both call for the denial of Dell'Aringa's claim of
such discrimination, though either would have been sufficient.

First, Ameritech states that Dell'Aringa was not promoted
because Benner and Calderone had already decided to fire him for
lying to Sears. On that score this opinion has already held that
he has failed to raise a reasonable inference that the stated
reason for his termination was pretextual. And it necessarily
follows that the same reason provides more than ample support for
a denial of promotion.

Second, Ameritech explains that Tokarski was hired because
Benner and Calderone believed that her experience with network
and global accounts made her more qualified for the position.
According to McCoy, 957 F.2d at 373, quoted again in Richter, 142
F.3d at 1029:

[T]he issue of pretext does not address the correctness

or desirability of reasons offered for employment

decisions. Rather, it addresses the issue of whether

the employer honestly believes in the reasons it

offers.

Once again Dell’Aringa has failed to present a question of fact
that Benner and Calderone did not honestly believe that Tokarski
was the better candidate.

Dell‘Aringa’s contention that he was more qualified than
Tokarski consists largely of his own perceptions of their

relative experience. Thus he highlights his assertedly superior

background in certain respects, while downplaying his relative

16


set out in this memorandum opinion and order, Ameritech’s motion
is granted in its entirety and this action is dismissed.
Summary Judgment Standards
Familiar Rule 56 principles impose on parties moving for

summary judgment the burden of establishing the lack of a genuine
issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986)). For that purpose this Court must “consider the
evidentiary record in the light most favorable to the non-moving
party...and draw all reasonable inferences in his favor” (Lesch

v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)).

And Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001) has

echoed the teaching of Anderson v. Liberty Lobby Inc., 477 U.S.

242, 248 (1986):

A genuine issue of triable fact exists only if “the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party.”

As with any summary judgment motion, this Court accepts
nonmovant Dell'Aringa's version of any disputed facts, but only
so long as it is supported by record evidence. What follows in
the Background section is culled from the parties' submissions.

Background
Dell’Aringa was first hired by Ameritech as a solutions

consultant in March 1998, when he was 55 years old (A. St. 45).

On April 2, 2000 Ameritech promoted Dell’Aringa to Global Account

memoranda.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD A. DELL’ ARINGA,
Plaintiff,

No. 01 C 4995

DOCKETED
SEP 2 0 2002

v.

SBC GLOBAL SERVICES, INC.,
et al.,

)
)
)
)
)
)
)
)
)
Defendants. )
MEMORANDUM OPINION AND ORDER
Richard Dell’Aringa (“Dell’Aringa”) has charged his former
employer SBC Global Services, Inc. (“SBC”) and Ameritech Corp.
(“Ameritech”)* with employment discrimination actionable under
the Age Discrimination in Employment Act (“ADEA,” 29 U.S.C.
§§621-634) and Title VII of the Civil Rights Act of 1964 (42
U.S.C. §§2000e to 2000e-17). Ameritech has filed a Fed. R. Civ.

P. (“Rule”) 56 motion for summary judgment, and both sides have

complied with this District Court’s LR 56.1.7? For the reasons

+ SBC was wholly owned by Ameritech during the events at

issue (Amended Answer 97). As did the parties’ briefs, this
opinion calls the employer “Ameritech.”

2? LR 56.1 is designed to facilitate resolution of Rule 56
motions by calling for evidentiary statements and responses (both
with record citations), highlighting the existence or
nonexistence of factual disputes. This opinion cites to
Ameritech’s LR 56.1(a) (3) statement as “A. St. § --” and to
Dell’Aringa’s LR 56.1(b) (3) (B) statement of additional facts as
“D. St. § --.” Dell’Aringa’s Response to Ameritech’s LR
56.1(a) (3) statement is cited "D. Resp. § --,” although where an
A. St. assertion is not contradicted a citation to the latter
ordinarily suffices. “A. R. St. 4 --” refers to Ameritech’s
reply statement. This opinion employs the same “A.” and “D.”

abbreviations in referring to the parties’ exhibits and


that he was not reprimanded during that period (D. Mem. 13).
Ameritech explains that the delay took place because even though
Benner decided to fire Dell’Aringa on December 18, 2000, it took
several weeks to obtain clearance from Human Resources (A. St.
448) .’ ,

Arguing that such a delay suffices to support an inference

that Ameritech’s reason was pretextual, Dell’Aringa relies on an

unpublished District Court opinion, Minervini v. Seven Worldwide
iInc., No. 01 C 683, 2002 U.S. Dist. LEXIS 560, at *15-16 (N.D.
Ill. Jan. 14). Minervini found a genuine issue of material fact
had been raised by an unexplained three month gap between an
employee’s behavioral problems and his termination. But where as
here a shorter time interval has been explained by uncontroverted
and credible evidence, the delay does not permit a reasonable
inference of pretext (see Shank v. Kelly-Springfield Tire Co.,
128 F.3d 474, 479 (7th Cir. 1997), overturning a jury verdict in
part because a two month delay in firing that was reasonably
explained by uncontradicted testimony did not permit a reasonable
inference of pretext).

Here Benner and Calderone explain that they sought clearance

7 Dell’Aringa argues that Benner’s statement that Human
Resources gave him clearance to terminate Dell’Aringa is
inadmissible hearsay (D. Mem. 12-13). Once again the statement
is not hearsay, for it is offered not for the truth of whether
clearance was granted, but rather for the fact of Benner's having
awaited a response from Human Resources.

12


differential.

Dell’Aringa incorrectly seeks to invoke Miller v. Borden

Inc., 168 F.3d 308, 313 (7th Cir. 1999) to limit the
substantially-younger requirement to only reduction-in-force
cases. But any such reading of Miller was specifically rejected
in Hoffman v. Primedia Special Interest Publ’ns, 217 F.3d 522,
524-25 (7th Cir. 2000), which applied Hartley's ten year
measurement of “substantially” younger where a negative
employment action was taken against an individual employee.

Of course Dell’Aringa can still present a triable claim
through evidence that the employer viewed his age as significant
(Hartley, 124 F.3d at 893). But Dell’Aringa has presented no
evidence that Ameritech’s failure to promote him was motivated by
his age.® And even if Tokarski had qualified as a substantially
younger employee, Dell’Aringa has not raised a reasonable
inference that Ameritech’s reasons for, not promoting him were
mere pretext.

Ameritech essentially gives two reasons for not promoting

8 Although not advanced directly in his response to the
current motion, Dell’Aringa’s Complaint suggests that Ameritech
discriminated against its older workers by offering them the
opportunity to participate in a voluntary retirement program
(Complaint 91,10). But “an offer of incentives to retire early
is a benefit to the recipient not a sign of discrimination”
(Peele, 288 F.3d at 331 n.14, quoting Henn v. Nat'l Geographic
Soc., 819 F.2d 824, 828 (7% Cir. 1987)). It is also undisputed
that none of the other 18 over-40 employees who declined the
retirement offer--not one except for Dell'Aringa--was ever
demoted or otherwise penalized (A. St. 9954-58).

15