Gadsby. Specifically, Plaintiff cites Gadsby for the proposition that “[a]n age discrimination
plaintiff merely needs to show that a younger employee assumed or absorbed the duties and
responsibilities of the plaintiff.” (Pl. Resp. Br. at 7 (citing Gadsby, 71 F.3d at 1331-33).)
Plaintiff also cites Gadsby for the proposition that “the inference of discrimination [in such
cases] is premised on some degree of fungibility between the [terminated employee’s] job and
the younger employee’s job[,] and in such “fungibility . . . situation[s], all the employee needs to
establish is that he was treated less favorably than one or more similarly situated younger
employees.” (/d.) Thus, Plaintiff argues, “an employer who discharges a protected employee
and either hires or retains younger employees to fill positions for which the older employee was
qualified bears the burden of explaining its actions.” (Id.)

The Court respectfully suggests that Plaintiff's reliance on Gadsby is misplaced. Plaintiff
omits from his Gadsby quotations pertinent language showing that the proffered analysis applies
to reduction-in-force (“RIF”) cases, not to single-discharge cases based on misconduct, as is the
case here. See Gadsby, 71 F.3d at 1331 (“Un an RIF case, the inference of discrimination . . . is
premised on some degree of fungibility. .. .”) (emphasis added). RIF cases are distinct from
insubordination cases such as this one because in RIF cases “an employer, in the course of
restructuring the business, terminates several (or numerous) employees and does not replace
them with new employees.” Miller v. Borden, Inc., 168 F.3d 308, 313 n.1 (7th Cir. 1999)
(emphasis in original). In RIF cases, any “inference of discrimination comes from the belief that
the employer selected the plaintiff for termination based on age from a group of employees who
were equally qualified for termination based on criteria other than age.” Gadsby, 71 F.3d at 1331

(emphasis added). In cases involving fungibility, all the employee needs to establish is that he

19



arguably was wrong, and “[even if] the company was careless in not checking its facts before
firing [plaintiff], . . . there is not evidence that the company approached [plaintiff’s] case
differently than others.”); see also id. at 677 (“[A]rguing about the accuracy of the employer’s
assessment is a distraction . . . .”) (citation omitted).

Plaintiff claims in his second rebuttal argument that Allstate failed to follow its own
policies when it converted what was a job performance issue into a loss of confidence justifying
immediate dismissal. (Pl. Resp. Br. at 11-12.) In particular, Plaintiff alleges that Allstate should
have subjected him to a series of progressive disciplinary measures and that Allstate’s failure to
do so is evidence of discrimination. (See id.) This, Plaintiff argues, shows that Allstate’s
articulated reason for terminating him is merely a pretext. (See id.)

This argument also fails. While it is true that a company’s failure to abide by its
procedures in the case of a particular employee may sometimes support an inference of pretext,
see Giacoletto v. Amax Zinc Co., 954 F.2d 424, 427 (7th Cir. 1992), this is not such a case.”* It is

undisputed that Allstate originally considered Plaintiff's lack of cooperation on the password

?8 In Giacoletto, unlike the instant case, the plaintiff-manager was retained at his job for
fourteen years while getting bad reviews for the factor that allegedly prompted his dismissal, and
moreover his department was achieving excellent productivity while operating within its budget
at the time of his firing, so the company’s failure to follow its policies concerning the allegedly
problematic and long tolerated factor was suspicious. 954 F.2d at 427. In this case, by way of
contrast, Plaintiff was fired virtually immediately after failing to provide the password. And
prior to the password incident, Balazs was giving Plaintiff the highest marks in his reviews,
which itself casts doubt on any notion that Balazs (who, at 43, was the same age as Plaintiff) was
looking to discriminate against Plaintiff on the basis of his age. See Hong v. Children’s Mem’l
Hosp., 993 F.2d 1257, 1266 (7th Cir. 1993) (“We find it implausible that [the plaintiff's
supervisor] would begin to treat the plaintiff in a pejorative manner because of the plaintiff's
national origin after eight years . . . especially when ... . [the supervisor] rated the plaintiffs
performance as exceeding the hospital’s expectations” for multiple years prior to problems that
allegedly led to plaintiffs termination.).

40



which he gave a materially different story regarding the password issue than he does here. For
example, when testifying under oath at the hearing, after being questioned whether Balazs asked
Plaintiff for a password, Plaintiff acknowledged, “[W]e had gone back and forth on that.” (Def.
SF 23.) At the same time, Plaintiff acknowledged that he had not provided any password to the
MAI team, stating that “I was under the impression that, um—we at CTS were not issuing a
password to other departments.” (/d.) The IDES referee asked a further series of questions
regarding the password, and in his responses, Plaintiff acknowledged that there was a password,
that Balazs in fact asked for it, and that Plaintiff did not provide it. (Def. SF Ex. D at 8-13.) For
example, Plaintiff admitted that when Balazs asked for the password on June 20, 2001, he replied
that he “told him [Balazs] that I was unable to give him the password at that time.” (Id. at 9.)
Plaintiff was further asked: “And what was — did you give him [Balazs] any reason about why
you were unable to give him [the] password?” (Jd. at 10.) To this question, Plaintiff answered,
“T was unable to explain the reason to him at that time.” (/d.) Plaintiff also offered two
explanations as to why he was unable to give Balazs a reason for not providing the password: “I
was un . . . I didn’t give him a reason because I was not at my desk and I was unable to verify the
password for him” (id. at 10); and “I don’t know that I was able to give him a response other than
I did not know what the password was at that time.” (/d. at 11.) Throughout the hearing, Plaintiff
never denied the existence of the password in question, but instead attempted to explain why he

could not and did not give the password to Balazs. (See Def. SF Ex. D at 8-13.)° Similarly, in

76 Although not material to the Court’s decision, the Court notes that Plaintiff's former
work colleague and friend, Paul Zielinski (who remains a current Allstate employee) testified that
on Plaintiff’s final day at Allstate, Plaintiff told him “he didn’t feel that he wanted to let the
program go, give it up with the password.” (Def. Resp. Ex. at 12); see also id. at 25 (testifying
that Plaintiff stated that “the program was password protected and he didn’t want to give the

36



practices, for better or worse, may be “medieval,” “high-handed,” or “mistaken” so long as age is
not a relevant factor in employment decisions) (citations and internal quotations omitted),
overruled in part on other grounds by Oxman v. WLS-TV, 12 F.3d 652 (7th Cir. 1993).

A plaintiff may present evidence of discrimination under either the “direct method” or
“indirect method.” Cerutti v. BASF Corp., 349 F.3d 1055, 1060 (7th Cir. 2003). Under the
direct method, a plaintiff must “show, by way of direct or circumstantial evidence, that his
employer’s decision to take an adverse job action against him was motivated by an impermissible
purpose, such as... age.” Jd. at 1061. A plaintiff may offer evidence under the indirect method
by using the familiar McDonnell Douglas burden-shifting formula. See McDonnell Douglas v.
Green, 411 U.S. 792 (1973). Under either method, the plaintiff must ultimately “demonstrate
that the employer would not have made the adverse employment decision in question but for his
membership in a protected class.” Cerutti, 349 F.3d at 1061-62 (collecting cases).

The Seventh Circuit has defined direct evidence in the employment law context as
evidence, which if believed by the trier of fact, will prove the particular fact in question without
reliance on inference or presumption. See, e.g., Rogers v. City of Chicago, 320 F.3d 748, 753
(7th Cir. 2003) (citations omitted), The Seventh Circuit has repeatedly counseled that “[d]irect
evidence usually requires an admission by the decisionmaker that his actions were based on age.”
Balderson y. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 321 (7th Cir. 2003);
see also Cerutti, 349 F.3d at 1061 (“Direct evidence ‘essentially requires an admission by the

decision-maker that his actions were based upon the prohibited animus.’”) (quoting Rogers, 320

13



the MAI project, even though employees who worked outside of CTS would typically be
assigned one. (Jd. ] 82.) Plaintiff also believed that Balazs and Noe were “doing everything they
could to help . . . [Rahman even though] [t]hey weren’t doing anything to help me while I was
struggling at MAI.” (Def. SF { 56.) According to Plaintiff, these disparities negatively impacted
his performance because the older software, and lack of Method One methodologies, caused him
to take longer to perform his duties. (Pl. SAF { 85.)

Finally, Plaintiff also claims that Jessica Wright" (“Ms. Wright”) (age 25),'* from the
expense department, received preferential treatment. In particular, Plaintiff asserts that Ms.
Wright had difficulty timely completing a large spreadsheet reconciliation project. (Def. SF Ex.
B at 112-13.) Plaintiff's argument, it seems, is that Allstate took no adverse action against Ms.
Wright, even though she was about six months behind in her project. (Jd. at 113.)

Under the RIF formulation of the fourth prong, to establish a prima facie case, Plaintiff

must show that the younger employees were similarly situated to him. To do this, Plaintiff must

'7 Plaintiff in his brief points to Jessica Wright as another younger comparator. (PI.
Resp. Br. at 8.) He cites to no facts regarding the relevance of Ms. Wright. Indeed, the only facts
regarding Ms. Wright in either party’s statement of facts is in Defendant’s statement (Def. SF {
61.), which are supported by citation to Plaintiff's deposition testimony. (Def. SF Ex. B at 112-
113.) Plaintiff cites to none of this to support the conclusory arguments in his summary
judgment brief. (Pl. Resp. at 8.) The Seventh Circuit has repeatedly instructed that “‘a party
contesting summary judgment has a responsibility under [Local Rule 56.1] to highlight which
factual averments are in conflict as well as what record evidence there is to confirm the dispute.”
Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995) (internal quotation marks
omitted); see also id. (“It is reasonable to assume that just as a district court is not required to
scour the record looking for factual disputes, . . . it is not required to scour the party’s various
submissions to piece together appropriate arguments.” (citations and internal quotation marks
omitted). As it makes no difference in the end, the Court chooses not to ignore Plaintiff's
unsupported allegations concerning Ms. Wright.

'8 Tt is unclear from the record how old Jessica Wright was at the time relevant to this
case. The Court will assume that Plaintiff's estimate of 25 is accurate. (Vonckx Tr. at 113-14.)

23



issue to be a “job performance issue,” for which Allstate’s human resources policy 4.1 would
require Allstate to initiate progressive discipline before terminating Plaintiff. (Def. SF {| 26; Def.
SF Ex. H at VON 103.) It is also undisputed, however, that as of June 22, 2001, Allstate
changed its assessment of the password dispute from a job performance issue to one of
misconduct on Plaintiff's part. (Pl. SAF J 66; Def. SF 4945-46.) Thus, Plaintiff's direct
management group lost confidence in Plaintiff's ability to perform his job because Plaintiff was
“deliberately ignoring a request to provide necessary password information... .” (Def. SF { 45.)
This type of misconduct falls under Allstate’s human resources policy 4.2 (entitled “Conduct
Leading to Immediate Termination”), which identifies certain sufficiently grave misconduct to
which the progressive disciplinary policy is inapplicable and for which immediate termination
may be appropriate. (Def. SF Ex. H at 103-04.)” Thus, Allstate did not violate its own
established policy when it terminated Plaintiff, and thus Plaintiff's argument that such violation
is evidence of pretext fails.

Plaintiff cannot show Allstate’s stated reasons for terminating him to be pretextual,
because he has failed to provide specific facts showing that Allstate did not give an honest,
nondiscriminatory explanation for terminating him. Perhaps Allstate was impatient in its
treatment of Plaintiff. Perhaps Allstate should have been more tolerant of Plaintiffs refusal to
comply with requests, especially given that Plaintiff's grandfather was terminally ill. Perhaps
Allstate gave unwarranted short shrift to Plaintiffs excuses for not providing the password. And

perhaps the Court would have treated Plaintiff differently if he had been the Court’s employee.

® Also included under the “Conduct Leading to Immediate Termination” is engaging in
harassing or discriminatory conduct “based on Sex, race, color, religion, age, disability,
citizenship, national origin, [and] sexual orientation.” (Def. SF Ex. H at 103.)

4l


SAF ff] 37-39.) He also claims that he informed Balazs about the unsuccessful installation. (/d.
740.)

One of the parties’ main points of contention is whether the program was password
protected when the MAI team received it. The parties agree that when Plaintiff had originally
developed the program, he placed password protection on it. (Def. SF ¢ 20.) Any program user
would therefore have needed Plaintiff’s password to access the source code. (Id. 21.)
Sometime shortly after Plaintiff installed the “Move, Add, Change” program at MAI, Rosado
attempted to access and modify the program’s source code. (/d. | 14.) Defendant argues that
Rosado was unable to successfully modify the program’s source code because the program was
password protected. (/d.) Plaintiff disputes this, claiming that he had removed the password
protection before giving the program to the MAI team. (Pl. SAF ff 44-45.)

On May 1, 2001, Rosado emailed Plaintiff and requested that he provide the source code
for the “Move, Add, Change” program. (/d. 32; Def. SF { 15.) Rosado copied her email to
another MAI team member, Lizzie Jones (“Jones”), who had been present at the April 30
meeting. (Def. SF 15.) Rosado’s email to Plaintiff, in relevant part, reads as follows:

Ineed to know the following so that we can take over the project. We know you

will not be available all of the time we need to make changes to the project

because you report to a different team. We want to learn to change the form,

contacts, group names, and MAI if that were to change also.
ce

Go over each form, its functionality, the coding behind it (the steps to make each
button function), and how we can make changes to it.

. .. (W)e need to know how everything works in order to be able to support it. If
you would rather copy the forms from your folder instead of using the ones I
created, it is fine, but we need to know the details behind it.

(d.) Plaintiff then replied to Rosado’s email, stating, “Although we will not be able to give you
the source code, we would be happy to partner with you in making this application work for all

4



collectively indicate that Allstate’s articulated reason for terminating Plaintiff was merely a
pretext for age discrimination.

Plaintiff first offers Balazs’s “blatantly ageist statements about Rahman” as evidence
“clearly support[ing] a discriminatory motive.” (PI. Resp. Br. at 9 (capitalization omitted).)
Plaintiff argues that Balazs’s comment is “competent evidence” to rebut Allstate’s articulated
reason. (Id. at 9-10.) The Court disagrees. Plaintiff's resurrection of “the kid” comment does
not “specifically rebut” Allstate’s reason for terminating Plaintiff. See Kariotis, 131 F.3d at 677.
Plaintiff presents no evidence that the comment tends to show that Allstate’s stated reason is
false, and it is at most a stray comment that does not constitute evidence by which a reasonable
jury could infer age discrimination. Certainly, the comment does not adequately rebut Allstate’s
articulated reason for terminating Plaintiff. See Jones, 302 F.3d at 743 (company’s description of
plaintiff as “black male” in investigative reports not evidence of racial animus); Plair, 105 F.3d
at 348 (same).

Plaintiff's remaining two rebuttal arguments, at least, relate more specifically to Allstate’s
articulated reason. Plaintiff's arguments boil down to an assertion that Allstate is simply wrong
that he withheld any password (because there was no password at all remaining on the software
installed at MAN), and therefore: (1) the fact that Allstate failed to properly investigate the
password dispute is evidence that Allstate’s articulated reason is pretextual, and (2) Alistate’s
“conversion” of the job performance issue into a loss-of-confidence issue is also evidence of
pretext. (See Pl. Resp. Br. at 10-12.)

The Court first considers Plaintiffs assertions regarding the nonexistence of a password.

The Court notes that Plaintiff's deposition and affidavit testimony about the password contradict

34



was treated less favorably than one or more similarly situated employees. See Miller, 168 F.3d at
313. In RIF cases, the Seventh Circuit typically does “not require a plaintiff to prove that he has
been replaced by a younger employee.” Gadsby, 71 F.3d at 1331 (citations omitted).

The case at bar is not an RIF case; instead, both parties agree that plaintiff was terminated
for misconduct (or at least alleged misconduct) for failing to provide the password for the
“Move, Add, Change” program. (Def. SF J 46; Pl. Resp. ]46."*) Thus, under the facts of this
case, it is most appropriate to evaluate the fourth element of Plaintiff's prima facie case using the
analysis from employee disciplinary cases.

In an ADEA disciplinary case, a plaintiff must show that he was disciplined more harshly
than similarly situated younger employees because of the employer’s ageist animus. See, e.g.,
Radue, 219 F.3d at 617. To satisfy the “similarly situated” element, the plaintiff in a disciplinary
case must show that he is similarly situated to the younger comparators “with respect to
performance, qualifications, and conduct.” Id. (emphasis added) (citing Byrd v. Ronayne, 61
F.3d 1026, 1032 (1st Cir. 1995)). Under this analysis, Plaintiff fails to make a prima facie case
because, even assuming he can point to comparators with similar performance and qualifications,
Plaintiff has provided no evidence that any younger employee committed the same or similar
misconduct but were nonetheless retained in their job. (See, e.g., Def. SF Ex. B at 108, 114.)
The Seventh Circuit requires such evidence in this type of discrimination case, and Plaintiff’s
failure to produce it is fatal to his case. See, e.g., Jones, 302 F.3d at 745 (holding that plaintiff

“failed to establish part four of the prima facie case” because he failed to provide an example of

\* As discussed elsewhere in the opinion, Plaintiff's sworn testimony before the IDES in
2001 confirms that the most appropriate method, on the facts of this case, for analyzing the
fourth prong is the disciplinary discharge/employee insubordination analysis.

20



to CTS, but the similarities end there. Unlike Plaintiff, Wright was not assigned to the TAS
team.”” (Def. SF ] 28.) Balazs was not Wright’s supervisor. (Jd. § 60.) Wright was not working
on “Move, Add, Change.” (Id. ] 28.) Asa result, because Wright is not a meaningful
comparator, Plaintiff may not claim that Wright is similarly situated for purposes of his prima
facie case. This is especially true when Plaintiff and Wright did not even share the same
supervisor. See Radue, 219 F.3d at 618 (“Different employment decisions, concerning different
employees, made by different supervisors, are seldom sufficiently comparable to establish a
prima facie case of discrimination. ...”) Thus, it is irrelevant that Allstate may have equipped
Wright with a laptop computer and newer software while Plaintiff had not received these
computer resources by the time he was fired.

Plaintiff's attempt to label Jessica Wright a younger comparator similarly fails. It is
undisputed that Ms. Wright was not on the TAS team, nor was Balazs her supervisor. (Def. SF J
62.) Moreover, Ms. Wright, by Plaintiff's own admission, “was not real [sic] experienced” and
“worked in the expense department.” (Def. SF Ex. B at 112-13.) Neither attribute compares
well to Plaintiff, a highly experienced computer programmer assigned to TAS. Moreover,
Plaintiff points to nothing else in either party’s statement of facts by which one could say that

Ms. Wright possessed analogous attributes, experience, education, or qualifications to Plaintiff?

® For the reasons set forth in footnote 4 supra, Plaintiff's denial of Defendant’s 28 is
improper, and the facts alleged therein are deemed admitted.

23 The Court notes that Plaintiff in his deposition also mentions Lydia Rosado as a
comparator. (Def. SF Ex. B at 114-15.) However, in his summary judgment brief, Plaintiff
omits any mention or explanation of Rosado as a comparator. Likewise, Plaintiff's L.R. 56.1
statement of fact also omits any factual assertion that Allstate treated Rosado preferentially or
that Rosado in any way qualifies as a similarly situated comparator for purposes of Plaintiff's
ADEA claim. (See Pl. SAF {fj 74-86.) Even if Plaintiff had attempted such explanation, the

26



Change,” worked on the VSSL, and maintained forms that Plaintiff developed. (Pl. SAF {ff 78-
79.) Another younger employee, Kahwon Taylor (age 25), later took over responsibilities for the
VSSL. (PI. SAF { 83.) Plaintiff also points to Shaohui Xia, whom Allstate hired to fill the
vacancy created by Plaintiff's termination. (Pl. Resp. Br. at 8; Def. SF § 54.) Shaoui was 37
years old at the time of her hire. (Def. SF ¥ 55.)

Second, Plaintiff claims that Defendant treated younger workers preferentially. Plaintiff
alleges that he had repeatedly asked Balazs for new software and hardware, including a laptop.
(PL SAF ff 84, 86.)"° Plaintiff argues that his younger colleagues received these benefits. For
example, Plaintiff claims that Allstate gave Rahman a brand new laptop and the latest software
when he started work. (Pl. SAF { 80.) Plaintiff also alleges that Steve Wright (age 25), one of
Plaintiff's coworkers, “had all the latest software,” whereas Plaintiff had older software. (Id. J
84.) Moreover, Plaintiff argues, Allstate afforded Rahman the benefit of “Method One
methodology””* for problem solving, while Allstate withheld such support from Plaintiff while he
was doing the installation work for the MAI team. (Jd. ¥ 81.)

Plaintiff also asserts that CTS never assigned an employee advocate to work with him on

'S Plaintiff asserts that he requested a laptop from Balazs (Pl. SAF {[ 86), but also
(paradoxically) admits that he did no such thing. (Def. SF { 69; PI. Resp. { 69.) An examination
of Plaintiffs deposition testimony further reveals what seem to be contradictory positions with
respect to whether Plaintiff requested a laptop. (Def. SF Ex. B at 111, 124.) As it makes no
difference in the end, the Court will assume that Plaintiff requested a laptop from Balazs.

'6 Method One apparently is a vended product used in CTS. “Methodology” appears
simply to be a way of managing a project—“It’s the process of initiating a project, gathering
requirements, documenting those requirements, doing analysis and design, construction, and
ultimately delivery of the application.” (Def. SF Ex. G at 101.) In brief, methodologies are
problem solving techniques for application development, and Method One is a particular
methodology.

22



the deposition testimony of Balazs, Noe, Rosado, and Zielinski. In particular, Plaintiff claims
that the “Move, Add, Change” program was not password-protected when he gave the program
to the MAI team, and thus the MAI team had everything it needed to access the source code. (PI.
SAF 4 35, 43-45.) Indeed, Plaintiff claims that he was not even aware of any password that
MAI might have needed in order to run his program. (Id. | 42.) The Court would normally
resolve such “he said, she said” discrepancies in the nonmovant’s (Plaintiff's) favor. See Foley,
359 F.3d at 928. This is a different case, however, because Plaintiff told a materially
contradictory story regarding the password issue in the sworn testimony he gave at the August
30, 2001, IDES hearing prior to the testimony he provided in his deposition and affidavit.

It is a long-established rule in the Seventh Circuit that a party “cannot create a genuine
issue of fact by submitting an affidavit containing conclusory allegations which contradict plain
admissions in prior deposition or otherwise swom testimony.” Diliberti, 817 F.2d at 1263
(collecting authority from the Seventh and other Circuits). Any contrary rule would allow a party
to “thwart the purposes of Rule 56 by creating ‘sham’ issues of fact[,]” and “the very purpose of
the summary judgment motion—to weed out unfounded claims, specious denials, and sham
defenses—would be severely undercut.” Bank of Illinois v. Allied Signal Safety Restraint Sys., 75
F.3d 1162, 1168-69 (7th Cir. 1996) (citations omitted); see also id. (collecting authority applying
rule in context of prior depositions, sworn testimony before state agency, and interrogatory
answers). The rule applies only in cases in which the party’s “statements are inherently
inconsistent and in which the contradiction is not the result of an honest discrepancy or newly
discovered evidence.” Jd. at 1169 n.10.

The rule applies in thi case, given Plaintiff's sworn testimony at his IDES hearing, in

35



statements that he preferred to hire “young people fresh out of college” and that he wanted to
“pass” on an applicant whose resume indicated that the applicant had “to be at least 50" because
such comments were not linked to plaintiff's termination); see also Jones v. Union Pac. R.R. Co.,
302 F.3d 735, 743 (7th Cir. 2002) (defendant’s description of plaintiff as a “black male” in
company report concerning incident that allegedly was the cause of plaintiff's firing was not
“evidence of discriminatory intent”); Plair, 105 F.3d at 348 (same). In short, the alleged
statements about “the kid” are insufficient to forestall summary judgment.
B. Plaintiffs Indirect Evidence

In evaluating Plaintiff's alleged indirect evidence of discrimination, the Court applies the
familiar McDonnell Douglas burden-shifting analysis. The McDonnell Douglas method of proof
entails three steps. See Robin, 200 F.3d at 1088, 1090. A plaintiff must first establish a prima
facie case of employment discrimination. See id. at 1088. If the plaintiff successfully presents a
prima facie case, a presumption of discrimination arises and the burden shifts to the defendant to
offer evidence of a legitimate, nondiscriminatory reason for taking the adverse employment
action. See id. The plaintiff “must then have an opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a
pretext for discrimination.” Baron v. City of Highland Park, 195 F.3d 333, 339 (7th Cir. 1999)
(internal quotation and citation omitted).

To establish a prima facie ADEA case, a plaintiff must demonstrate that: (1) he is in the
protected class of age forty or older; (2) he was performing his job to the employer’s legitimate
expectations; (3) he was subject to an adverse employment action; and (4) similarly situated and

substantially younger employees were treated more favorably. See Franzoni v. Hartmarx Corp.,

17



Plaintiff took off from work the following two days, June 21 and 22, 2001, to take care of
his terminally ill grandfather. (P1. SAF {| 61-62; Def. SF 737.) At around 9:00 a.m. on June 21,
Plaintiff left a message in Balazs’s voicemail.’ (Def. SF 38.) Plaintiff told Balazs that he was
“unable to provide answers to the questions.” (Jd. ¥ 39.) It is undisputed that Plaintiff did not
give Balazs the password on June 21, and he did not try to call Balazs again that day because
Plaintiff “figured that [the one voicemail] was good enough.” (Id. {{ 38-40.)

On June 22, Plaintiff made no further attempt to contact Balazs. (Jd. { 40.) Plaintiff did,
however, participate in a telephone conference regarding the password issue with Jennifer Noe
(“Noe”), Plaintiff's employee advocate, and Joan Naughton-Gerdes (“Naughton-Gerdes”),
Plaintiff's direct supervisor. (Pl. SAF {{] 64-65.) While details of the phone call are scant, it is
undisputed that Allstate changed the password issue from being a performance problem to being
an issue of employee misconduct on Plaintiff's part. (Id. 4 66.)

When Plaintiff came to work on Monday, June 25, he met with Balazs and Noe. (Def. SF
]42.) Marina Graf (“Graf”), an Allstate human resources consultant, and Michael Thomas
(“Thomas”), Allstate’s Assistant Vice President of Application Services, also participated. (d.)

Plaintiff was informed that Allstate was suspending him pending an investigation. (/d.) Despite

was a refusal.”).) As explained further below, because the factual assertions in Defendant’s { 33
are consistent with Plaintiff's earlier sworn testimony at the IDES hearing, Seventh Circuit
precedent teaches that a litigant cannot attempt to create a factual issue so as to forestall summary
judgment by contradicting prior sworn testimony through so-called sham affidavits and new
deposition assertions. See, e.g., Patterson, 150 F.3d at 724; Diliberti, 817 F.2d at 1263.

® Plaintiff admits that he did not provide a password in his voicemail message but denies
the remainder of Defendant’s { 39 as “argumentative” without citing to any contradicting record
evidence, (Pl. Resp. 1 39.) Allstate supports its factual assertions in { 39 by citing Plaintiff's
own deposition testimony. (Def. SF Ex. B at 87, 171-72, 176-77.) Plaintiffs denial is improper,
and the Court deems admitted the contents of Defendant’s { 39.

9



judgment would be justified for the alternative and independent reason that Plaintiff cannot on
this record put at issue that Ailstate’s articulated reason for terminating Plaintiff was actually a
pretext for age discrimination.

To show pretext, Plaintiff must specifically rebut Allstate’s proffered reason by
demonstrating that it is not true. See Kulumani, 224 F.3d at 685; Kariotis v. Navistar Int’l Trans.
Corp., 131 F.3d 672, 676 (7th Cir. 1997). It is insufficient for Plaintiff merely “to show that...
[Allstate] acted incorrectly or undesirably by firing him; . . . [Plaintiff] must show that...
[Allstate] did not honestly believe in the reasons it gave for firing him.” Adreani v. First
Colonial Bankshares Corp., 154 F.3d 389, 395 (7th Cir. 1998) (internal quotation marks and
citation omitted). If Allstate honestly believed its articulated reason for terminating Plaintiff, he
loses even if the reason is foolish, trivial, or wrong. See Kariotis, 131 F.3d at 676-77. The Court
will consider Allstate’s proffered reason along with Plaintiff's requirement of showing that
Allstate’s reason is merely a pretext.

Allstate asserts that Plaintiff was terminated for not providing the password for the
“Move, Add, Change” program despite repeated requests that he do so. (Def. SF {| 46.)
Allstate’s reason for terminating Plaintiff, on its face, appears perfectly valid and
nondiscriminatory, and, more important, Seventh Circuit precedent recognizes as much. See,
e.g., Jones, 302 F.3d at 742 (stating that “[i]nsubordination is a legitimate, non-discriminatory
reason for firing an employee” and collecting numerous Seventh Circuit precedents to same
effect) (citation and internal quotation marks omitted). Indeed, Allstate points to ample support
in the record to support its proffered reason for firing Plaintiff. Balazs, Noe, Rosado, and Paul

Zielinski (“Zielinski”) (one of Plaintiff's former coworkers) all gave sworn deposition testimony

32



Plaintiffs prima facie case. While Rahman maintained the “Move, Add, Change” system that
Plaintiff had developed, and took on team share administration duties that Plaintiff once
performed, Plaintiff acknowledges that these duties only occupied about five percent of
Rahman’s time. (Def. SF 53.) Rahman worked on VSSL only in transition before the work
could be reassigned to Taylor. (Def. SF Ex. G at 102-03.) Plaintiff's VSSL duties then passed
on to Taylor, who worked in a different department and thus did not answer to Balazs. (Def. SF
752.)

As for his remaining job responsibilities, Plaintiff does not dispute that Allstate
transferred much of them to other teams. (Pl. Resp. SF 50.) For example, Plaintiff's work on
“environmental setup manager” was transferred to another department in CTS and assigned to
Robert Hay (“Hay”) (age 50) and Maimon Lusky (“Lusky”) (age 51). In total, therefore,
Plaintiffs duties were absorbed by four Allstate employees, and two of them who absorbed the
bulk of the work (Hay and Lusky) are older than Plaintiff4 (Def. SF {ff 50-53; Pl. Resp. {J 50-
53.) Rahman temporarily absorbed Plaintiffs duties that remained in TAS, and, as mentioned
above, it is undisputed that Rahman spent only five percent of his time on these duties. (See Pl.
Resp. { 53.)

Finally, the Court notes that Plaintiff mentions Shaohui Xia, whom Allstate concedes it

*4 Allstate indicated in response to Plaintiff's interrogatories that Plaintiff's job duties
were assigned to Rahman, Taylor, Hay, Lusky, and Shaohui Xia. (Def. SF Ex. G, Tab 8, { 8.)
Ms. Xia is listed as having assumed Plaintiff's web development duties. (Jd.) This appears to be
in error; Plaintiff has admitted that he had no web development duties. (Pl. Resp. | 49.)
Moreover, Balazs and Noe explained that Xia replaced Plaintiff as far as headcount in TAS, not
in web development, which Plaintiff admittedly did not do. (Def. SF Ex. G at 120; Noe Tr.
(“Def. SF Ex. F”) at 54.) In light of Plaintiff's admission and Defendant’s explanations, the
Court finds that there is no factual dispute that Plaintiff had no web development duties.

29



assumed that the MAI team had full access to the systems and was happy with Plaintiff's
installation of the “Move, Add, Change” program. (Def. SF J 18.) Plaintiff disagrees that Balazs
could have had this assumption, because he claims to have told Balazs in early May that the
program installation was unsuccessful. (Pl. SAF ] 40.) Whatever Balazs may have believed in
May and early June, however, it is undisputed that on June 6, 2001, Balazs received a copy of an
email that Jones had sent to Plaintiff regarding the program. (Def. SF | 19.) Jones’s email reads
in part:

[MAI has] gone beyond the set timeframe for this project. We are unable to view

the code to build our code for MAI specification. Also, we are unable to edit the

forms because you have password protection on all the forms. We understand

from your message below that you want to market your process to the entire

TSS/FS group, but we do not have the authority to give you a partnership with

TSS/ES or any other group.

Please understand that we are not trying to take credit for creating your process.

However, we are interested in benefiting [sic] from tools that currently exist at

Allstate. So if there is no special official protocol regarding your tool, we would

sincerely appreciate it if you would provide us with the previous[ly] requested

information and any other information that we will need to model your system.

Again, please understand we will be using your process as a template.

(id. (emphases added).) Jones’s email also contained Rosado’s previous May 1, 2001 email to
Plaintiff, along with Plaintiff's response. (/d.)

As June progressed, Balazs clearly expressed concern with Plaintiff and the lack of
progress concerning the “Move, Add, Change” program. Specifically, on June 20, 2001, Balazs
emailed Plaintiff and requested that he provide the password to the MAI team. (/d. 22.) Balazs
stated in his email that “the MAI resource managers have made a simple request to have access

to the code and forms so that they can modify the [Move, Add, Change] application to fit their

work processes.” (/d. 25.) In addition, Balazs reminded Plaintiff that “[a]s an Allstate



areas of TSSFS.”” (Jd. 17.) Plaintiff's email response was copied to Jones. (Id.)

Plaintiff contends that he met with Rosado right away after her email and attempted to fix
the problems with the program. (PI. SAF { 32.) Plaintiff claims that he and Rosado “struggled”
to get the program files to operate on Rosado’s system, but ultimately they were unsuccessful due
to technical problems. (/d. J] 33-34.) Despite admitting that he sent the aforementioned email
response to Rosado, Plaintiff asserts that he provided “all the source and application code that he
had,” fully discharging his duties with respect to the MAI team. (Id. 7 35.) Rosado, Plaintiff
claims, never requested the source code again after their failed troubleshooting efforts. (Id.)
Defendant, on the other hand, disputes that Plaintiff made any attempt to meet with Rosado or
provide the requested access information and further explains that Plaintiff never informed
Balazs of any problem with the installation. (Defendant’s Response to Pl. SAF (“Def. Resp.”) {f]
32-47.)

On May 29, 2001, Allstate hired Saifur Rahman (“Rahman”), age 26, as a new member of
the TAS team. (Pl. SAF 9] 74, 76; Def. SF { 48.) Balazs announced the hire to the TAS team,
and informed them that Rahman would be doing web development, some administrative work,
and some work on TAS’s problem management system. (Pl. SAF J 76; Def. SF { 49.) Balazs
did not indicate that any of Plaintiff's job duties would be changing because of Rahman’s hire.
(Def. SF ¢ 49.)

In early June 2001, the password issue again took center stage. In his deposition, Balazs

testified that, from the time Plaintiff undertook the MAI assignment until early June, Balazs

? It is unclear from the record what “TSSFS” is, but this ambiguity is irrelevant to the
Court’s disposition of this motion.



300 F.3d 767, 771-72 (7th Cir. 2002); Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687,
693 (7th Cir. 2000). If the plaintiff establishes a prima facie case, the burden shifts to the
defendant to articulate a legitimate, non-discriminatory reason for the adverse employment
action. See Taylor v. Canteen Corp., 69 F.3d 773, 780 (7th Cir. 1995). If the defendant meets its
burden, the burden shifts back to the plaintiff to prove that the defendant’s articulated reason is
merely pretextual—in other words, “that a discriminatory reason more likely motivated [the
defendant] or that the proffered explanation is unworthy of credence.” Rand v. CF Indus., Inc.,
42 F.3d 1139, 1145 (7th Cir. 1994) (citation omitted); see also Kulumani v. Blue Cross Blue
Shield Ass’n, 224 F.3d 681, 685 (7th Cir. 2000) (“[Pretext] means a dishonest explanation, a lie
rather than an oddity or an error.”).

Defendant does not dispute that Plaintiff satisfies the first three requirements of a prima
facie case. (Defendant does dispute the pretext prong of the McDonnell Douglas analysis, but
more on that later.) Accordingly, the first question before the Court is whether Plaintiff satisfies
the fourth element of a prima facie case, At the outset, the Court notes that the Seventh Circuit
has articulated different standards for evaluation of the fourth element in employment cases,
recognizing “the variety of adverse employment actions covered within the broad reach of the
discrimination statutes. ...” Michas, 209 F.3d at 693. The Seventh Circuit has likewise set forth
various articulations of the fourth prima facie element in ADEA discharge cases—consistent
with the Seventh Circuit’s teaching that the McDonnell Douglas framework must be applied
flexibly and tailored to the particular circumstances of the case at hand. See Gadsby v. Norwalk
Furniture Corp., 71 F.3d 1324, 1331-32 & n.3 (7th Cir. 1995) (collecting cases).

Plaintiff urges that we adopt what he sees as the fourth element analysis adopted in

18



cryptically stated only that “Steve Wright is the owner of the PCCSO system, NOT me.” (Def.
SF { 28 (capitalization in original).) Plaintiff did not provide Balazs with any password that
would allow the MAI team to access his program’s source code. (Id.)°

Following the email exchange, at around 4:00 p.m. the same day, Plaintiff had a face-to-
face conversation with Balazs in which Balazs again requested the password. (Def. SF { 32.)
Plaintiff responded that he was unable to give Balazs the password at that time, and he provided

no reason for his inability to comply with Balazs’s request.’ (Def. SF ] 33.)

remaining allegations in { 28 are “argumentative” is unfounded. As Plaintiff has improperly and
inadequately denied the factual allegations contained in § 28, the entire paragraph is deemed
admitted.

5 It is unclear from the record what “PCCSO” is, but this ambiguity is irrelevant to the
Court’s disposition of this motion.

§ Despite Plaintiff's reference to Steve Wright, Mr. Wright was not assigned to the TAS
team (and therefore did not answer to Balazs). (Def. SF 28.) As such, Mr. Wright was not
working on the “Move, Add, Change” program at Balazs’s behest. (Id.)

7 Plaintiff denies that the conversation unfolded this way, and he again calls Defendant’s
allegations “argumentative.” (Pl. Resp. { 33.) To support his denial, Plaintiff cites to his own
and Balazs’s deposition testimony. (/d.) The cited portion of Balazs’s testimony, however, does
not appear to relate to the conversation in question, but rather appears to relate to an earlier
communication. (Balazs Tr. (“Def. SF Ex. G”) at 90.) Nonetheless, viewed generously, the cited
portions of Plaintiff's deposition (taken July 29, 2003) seem generally to support Plaintiff's
denial. (Def. SF Ex. B at 150, 162, 169.) However, Allstate provides supporting citations to the
transcript of Plaintiff's sworn testimony at his August 30, 2001, hearing before the Illinois
Department of Employment Security (“IDES”) concerning his firing. (IDES Hearing Tr. (Def.
SF Ex. D”).) The Court has reviewed the entire transcript of the IDES hearing, including
Plaintiffs sworn testimony there. Plaintiff's sworn testimony at that hearing—given some two
years before his deposition in this case—tells a materially different story regarding the
conversation. At the hearing, Plaintiff repeatedly contradicted his litigation position before this
Court that Plaintiff did not have any password and had so informed Balazs. (Def. SF Ex. D at 9
(Plaintiff testifying that on June 20, 2001, “I told him [Balazs] that I was unable to give him the
password at that time.”) (emphasis added); 10 (“I was unable to explain the reason to him at that
time.”); 8 (“I was under the impression that, um — we at CTS were not issuing a password to
other departments”); 10 (“I did not give him a reason, but I did not think that it was taken that it

8



show “at a minimum that the [comparators] possessed analogous attributes, experience,
education, and qualifications relevant to [Plaintiff's position], and that the [comparators]
obtained the desired position around the same time as the [termination].” Radue, 219 F.3d at 618
(collecting cases). Plaintiff “need not show complete identity in comparing himself to the better
treated employee[s], but he must show substantial similarity.” Jd. (citation omitted). In addition,
a plaintiff typically should provide evidence of a common supervisor or decisionmaker to show
substantial similarity. See, e.g., id. at 617-18.

Applying these standards, the Court finds that plaintiffs evidence falls short. None of the
various comparators plaintiff names is “similarly situated” as defined in the relevant caselaw.

Plaintiff alleges no specific facts showing that Rahman, for example, “possessed
analogous attributes, experience, education, and qualifications” such that he may be similarly
situated to Plaintiff. See Radue, 219 F.3d at 618. If anything, Plaintiff's expertise and level of
experience appear to set him far apart from Rahman. Plaintiff’s professional experience began
“in 1980 or 1981.” (Pl. SAF § 1.) By the time Plaintiff started contract work for Allstate in
1994, he had accumulated over a dozen years of technical experience in the field. (See id. {| 1-
7.) As of his termination, Plaintiff was somewhat of a computing “go-to guy.” (Id. J 14.)
Plaintiff's duties in CTS included maintaining the VSSL, the problem solving system,
maintaining forms, and granting permissions for systems or file directories. (Def. SF J 47.)
Plaintiff did no web development work. (/d. 49.)

Rahman, on the other hand, was hired as a web developer. (Def. SF { 49.) During the
three weeks before Plaintiff’s termination, Rahman, a brand new hire, was participating in

Allstate’s orientation program. (Def. SF Ex. B at 97.) Plaintiff alleges no facts, nor has the

24



‘Minute Order Porm (06/97)

Lr United States District Court, Northern District of Illinois
Name of Assigned Judge rik Sitting Judge if Oth
vor Magistrate Judge Mark Filip than Assigned Judge
CASE NUMBER 02 C 8474 DATE 6/22/2004
CASE Robert Vonckx vs. Allstate Insurance Company
TITLE

[In the followingbox (a) indicate the party filing the motion, eg, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer brief due.

(4) a Ruling/Hearing on setfor at

(5) Qo Status hearing[held/continued to] [set for/re-set for]on__—ssetfor_ at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on_——setfor__— at.

(7) a Trial[set for/re-set for] on__at

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

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CUFRCP4(m) ClLocal Rule 41.1 COFRCP41(a)(1) 0 FRCP41(a)(2).

ao «of [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: For the reasons set
forth in the attached Memorandum Opinion and Order, Allstate’s motion for summary judgment is
Granted.

dl) @f [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required umber ot roties

Document
“Number

Notices mailed by judge’s staff. JUN 33 2004

Notified counsel by telephone.

date dockeied
Docketing to mail notices.

Mail AO 450 form. ddocketing deputy initials

Copy to judge/magistrate judge,

date mailed notice

courtroom
TBK deputy’s
initials

ve.» Date/timg received in ; :
central Clerk’s|Office mulling deputy inate

Zo-



were not issuing a password to other departments”); 10 (“I did not give him a reason, but I did
not think that it was taken that it was a refusal.”).)!° (Jd.)

On March 13, 2002, Plaintiff filed a charge of employment discrimination with the Equal
Employment Opportunity Commission (“EEOC”). (Def. SF {5.)'' On August 26, 2002, the
EEOC issued Plaintiff a right to sue letter. (/d. J 7.) On November 21, 2002, Plaintiff filed suit
in this Court, alleging that defendant Allstate discriminated against him in violation of the ADEA
when it terminated his employment. (DE. 1.)

Il. SUMMARY JUDGMENT STANDARD

Summary judgment is proper where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the 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). The nonmovant cannot rest on the pleadings alone, but

must identify specific facts, see Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316,

© Plaintiff admits testifying at the IDES hearing, but denies the quoted statement because
of Defendant’s allegedly improper citation to the record and because “said allegations lack
foundation.” (Pl. Resp. 23.) Plaintiff attempts to supports his denial with his subsequent
contradictory affidavit, the exact same citation to the IDES transcript that Defendant cites, and
caselaw, The Court had no trouble locating the quoted language in the transcript from the IDES
hearing and verifying that Defendant’s quotation is, in fact, accurate and relevant. (Def. SF Ex.
Dat 8.) To the extent Plaintiff's affidavit contradicts his sworn testimony at the IDES hearing,
the Court disregards the portions of the affidavit attempting to contradict the prior testimony so
as forestall summary judgment. See, e.g., Diliberti, 817 F.2d at 1263. Similarly, for the reasons
stated above, Plaintiff's legal arguments do not suffice as proper denials of defendant’s factual
allegations. See Bordelon, 233 F.3d at 529. Plaintiff's denial is improper, and the Court deems
admitted the allegations contained in Defendant’s { 23.

'! In his EEOC charge, Plaintiff stated under penalty of perjury that he was discharged
for allegedly failing to give a password to a computer system but “[t]he password was not within
my control because I was not permitted in the building where the system was located.” (Def. SF
416; Pl. Resp. 6.)

11



this, Plaintiff again failed to provide a password at any time that day. (/d. § 43.)

On June 26, 2001, Noe sent a letter to Thomas in which she stated that Plaintiff's direct
management group had lost confidence in Plaintiff’s ability to perform his job because he was
“deliberately ignoring a request to provide necessary password information to the [MAI Team]
leadership group.” (Def. SF  45.)° Later the same day, Plaintiff was terminated for employee
misconduct for failing to provide the requested password despite repeated requests. (Id. J 46.)
Plaintiff was forty-three years old at the time of his termination. (Def. SF 2, 46.) So was
Balazs. (Def. SF § 4.)

On August 30, 2001, Plaintiff attended a hearing at the Illinois Department of
Employment Security (“IDES”) concerning his application for unemployment benefits. (Def. SF
{23 & Ex. D (IDES Hr’g Tr.).) At the hearing, Plaintiff testified under oath about the events
leading to his termination. (Def. SF 23.) When the IDES administrative referee asked Plaintiff
about the password, Plaintiff repeatedly acknowledged that he had not provided any password to
Balazs. (Def. SF Ex. D at 9 (Plaintiff testifying that on June 20, 2001, “I told him [Balazs] that I
was unable to give him the password at that time.”) (emphasis added); 10 (“I was unable to

explain the reason to him at that time.”); 8 (“I was under the impression that, um — we at CTS

° Plaintiff admits that Noe sent a letter but denies the remainder of Allstate’s ] 45 as
“conclusory.” (PI. Resp. { 45.) In support, Plaintiff cites caselaw as well as his own deposition
testimony. (Def. SF Ex. B at 160-61.) Plaintiff's denial is improper. Plaintiff provides no
explanation for why the disputed portions of { 45 are “conclusory,” and his unadomed citation to
caselaw does not adequately create a dispute of fact. See Bordelon, 233 F.3d at 529. To the
extent that Plaintiff offers his deposition testimony to dispute Allstate’s assertion that a password
existed (and that Plaintiff failed to provide it), the Court disregards the deposition testimony
because it contradicts Plaintiffs prior sworn testimony, as explained below. See Patterson, 150
F.3d at 724; Diliberti, 817 F.2d at 1263. The Court therefore deems admitted the allegations in
Defendant’s { 45.

10



Hook-SupeRX, Inc., 142 F.3d 1024, 1029 (7th Cir. 1998) (“[I]n cases where the disparity is less
[than ten years], the plaintiff may still be able to present a triable claim if he directs the court to
evidence that his employer considered his age to be significant.”) (citation omitted). Plaintiff
omits language qualifying the Seventh Circuit’s teaching that the ten-year gap is not always a
bright line rule. In Richter, the Seventh Circuit clarified that an age disparity smaller than ten
years might support an age discrimination claim if supported by convincing additional evidence
that would likely include direct evidence (thus making the indirect evidence method less
relevant). See id. at 1029 n.3 (citing Hartley, 124 F.3d at 893). This would include evidence that
the employer considered plaintiff's age to be significant. See Hartley, 124 F.3d at 893. The only
possible evidence that Plaintiff offers on this score is Balazs’s reference to Saifur Rahman as “the
kid.” As the Court already noted, “the kid” does not qualify as direct evidence of
discrimination—and it does not qualify as evidence that Balazs considered Plaintiff's (as
opposed to, perhaps, Rahman’s) age to be significant at all. See Richter, 142 F.3d at 1032
(indicating that if decision-maker was member of age-protected class, that militates against any
inference of age discrimination). Plaintiff provides no evidence that Balazs or any other Allstate
employee involved in his termination considered Plaintiff's age to be significant.

In sum, the Court believes that the facts of this case best fit the disciplinary dicharge
model, and the prima facie analysis should proceed along those lines, under which Plaintiff's
case fails and summary judgment is appropriate. Even if another prima facie analytical method is
employed, the Court still believes that Plaintiff's case fails and summary judgment is warranted.

C. Pretext Analysis

Even if Plaintiff could make out a prima facie case under the fourth prong, summary

31



hired to fill the numerical vacancy created by Plaintiff's termination (although Ms. Xia did not
assume Plaintiff's job responsibilities). Under the RIF analysis Plaintiff seeks, he need not show
that he has been replaced by a younger employee after his termination. See Gadsby, 71 F.3d at
1331 (citation omitted). The Court will nonetheless evaluate Shaohui Xia’s hire because
Plaintiff mentions it in his summary judgment brief. (See Pl. Resp. Br. at 8.)

It is undisputed that Allstate hired Ms. Xia to fill the numerical vacancy created by
Plaintiff's termination. (Def. SF § 54.) Ms. Xia’s duties, however, involved web development,
not any of Plaintiff's previous duties (Def. SF Ex. G at 120), and Plaintiff provides no evidence
to the contrary. But even if Allstate did hire Xia to take over Plaintiff's job, Plaintiff still cannot
make a prima facie case.

The problem, from Plaintiff’s standpoint, is that Ms. Xia was age 37 at the time Allstate
hired her. True, Ms. Xia was younger than Plaintiff and not within the protected class, but
caselaw requires Plaintiff to produce substantially younger coworkers who assumed his tasks, not
merely younger ones. To be substantially younger, a coworker normally must be at least ten
years younger than the plaintiff. See, e.g., Radue, 219 F.3d at 619 (holding that employees who
were, respectively, seven and nine and one-half years younger than plaintiff were not
“substantially younger”); Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 893 (7th Cir. 1997)
(noting that a seven-year age difference is presumptively insubstantial, and stating that “[t]en
years is a reasonable threshold establishing a ‘significant’ and ‘substantial’ gap”). Ms. Xia, at
age 37, was only six years younger than Plaintiff, so she was not substantially younger as
required.

Plaintiff challenges this presumptively insubstantial age gap by citation to Richter v.

30



employee, you have been compensated for your efforts in developing this system.” (Id. | 26.)
Finally, Balazs warned that he had “grown weary in [sic] discussing this issue with you any
further. We have discussed this issue repeatedly over the last week with no positive outcome.
This has become a job performance issue, and I will treat it as such.” (Id. (emphasis in
original).) Balazs’s email also contained Rosado’s’ previous email to Plaintiff, along with
Plaintiff's reply to Rosado. (Id.)

Later the same day, Plaintiff emailed a reply to Balazs.* (Jd. 28.) In the email, Plaintiff

3 Although not material to the disposition of this motion, the Court notes that Plaintiff
denies Defendant’s contention that Balazs’s email to Plaintiff also contained a copy of Jones’s
prior email to Plaintiff. Plaintiff claims that the first he had seen of the Jones email was when “it
was delivered to [his] door via the overnight service” before a 2001 IDES hearing. (Plaintiff's
Response to Def. SF (“PI. Resp.”) 27; Vonckx Tr. (“Def. SF Ex. B”) at 174-75.) This denial
seems incredible, given that a review of the record reveals that the Jones email (dated June 6,
2001) is forwarded as part of a full chain of emails, the latest of which is from Plaintiff himself
(dated June 20, 2001). (Def SF Ex. B, Tab 5.) Moreover, Plaintiff admits the contents of
Defendant’s { 19, which explains that Balazs received the Jones email and quotes extensively
from Jones’s email. (Def. SF J 19; Pl. Resp. 19.) This issue, however, is not material to the
result in disposition of the motion.

* Plaintiff improperly denies the content of his own email response and Defendant’s
factual assertions regarding the email. (Pl. Resp. | 28 (“Admit that Plaintiff sent Balazs an email
... but... den[y] each and every remaining allegation . . . as said [p]aragraph violates Local
Rule 56.1 by failing to set forth short paragraphs and is argumentative.”).) Plaintiff provides no
factual support for his denial, but instead cites caselaw. While Defendant likely should have set
forth the multiple facts contained in { 28 in separate paragraphs, see L.R. 56.1(a), that rule is for
the Court’s benefit, so that it will not have to “scour the record looking for factual disputes.”
Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994) (collecting cases). Allstate
supported each factual assertion in {[ 28 with accurate and clear citations to the record—and the
Court had no difficulty analyzing the relevant factual assertions, even though they were set forth
in one paragraph. The Court therefore exercises its discretion not to strike or otherwise ignore
Defendant’s factual assertions contained in J 28. See, e.g., Malec, 191 F.R.D. at 583.

Plaintiff's citation of caselaw, rather than facts in the record, to attempt to support his
factual denial is improper. See Bordelon, 233 F.3d at 529 (Noting that a district court is not
“required to wade through . . . legal argument in search of a genuinely disputed fact.”).
Moreover, Allstate’s record citations in {28 properly support each of its factual assertions (in
one instance, by Plaintiff's own deposition testimony), and thus Plaintiff's assertion that the

7



another employee being “treated more favorably under similar circumstances” after plaintiff
engaged in insubordination); Plair, 105 F.3d at 349-350 & n.3 (same).

Moreover, even if the Court instead accepts and applies Plaintiff's interpretation of
Gadsby, Plaintiff nonetheless would fall short of making a prima facie case. In this vein, the
Court notes that Plaintiff actually urges the Court to adopt two different formulations of the
fourth prong, each more permissive than the formulation in misconduct/termination cases. The
first is the RIF “fungibility” analysis, in which a plaintiff must show that he was treated less
favorably than one or more similarly situated or equally qualified younger employees who were
retained. See, e.g., Miller, 168 F.3d at 313; Gadsby, 71 F.3d at 1331. The second formulation is
the Seventh Circuit’s so-called “mini-RIF fungibility” analysis, in which a plaintiff must show
that his duties were absorbed by other employees not in the protected class. See Bellaver v.
Quanex, 200 F.3d 485, 495 (7th Cir. 2000). Under this analysis, Plaintiff need not show that the
younger employees are similarly situated. See id. Plaintiff fails to make a prima facie case under
either of the proffered formulations.

1. The “RIF” Formulation

Plaintiff provides evidence of what he believes to be more favorable treatment of
similarly situated young employees. The gist of Plaintiff's argument is that Allstate maintained a
“double standard” between older and younger employees and that Plaintiff's younger
counterparts were not subjected to discriminatory treatment. (Compl. 13.) Specifically,
Plaintiff offers the following evidence that Defendant discriminated against him. First, Plaintiff
asserts that younger employees took over some of his job responsibilities following his

termination. For example, Plaintiff asserts that Saifur Rahman. (age 26) handled “Move, Add,

21


provided it. As a result, the Court disregards Plaintiff's contradictory deposition and affidavit
testimony to the extent it contradicts unambiguous prior sworn testimony before the IDES. See,
e.g., Bank of Mlinois, 75 F.3d at 1169; id. at 1173 (Cudahy, J., concurring) (“When a party seeks
to create an issue of fact by simply submitting an affidavit which directly contradicts a witness’s
prior sworn statements, a court rightly ignores the later submission since it creates no genuine
factual dispute.”) (emphasis in original).

As a result, Plaintiffs rebuttal arguments, which rest on his contention that there was no
password at all and had so informed Balazs, must fail because the key inquiry is not whether
Defendant’s stated reason for firing Plaintiff (that he refused to turn over a password or explain
why) is true, but whether Defendant believed its stated reason to be true or actually was lying and
engaging in age discrimination. See, e.g., Kariotis, 131 F.3d at 676. Plaintiff offers no evidence
casting doubt on Defendant’s sincere belief. And, incidentally, it appears that Allstate’s belief
was well founded. Plaintiff did not provide the password in response to Balazs’s June 20, 2001
email in which Balazs warned Plaintiff that his failure to do so had become a job performance
issue. (Def. SF { 24-28.) Plaintiff did not provide the password when leaving a voicemail with
Balazs on June 21. (/d. 4 40.) Plaintiff did not provide the password on June 25, following the
meeting in which Balazs and human resources personnel suspended Plaintiff pending an
investigation. (Id. {{] 42-43.) From these facts, there is no triable issue about whether Allstate
actually believed in its stated reason for terminating Plaintiff.

Even assuming for the sake of argument that there was—as Plaintiff claims—actually no
password, Plaintiffs remaining rebuttal arguments also would fail. Plaintiff's first argument in

rebuttal is that Allstate did not adequately investigate the password issue, and this shows that

38



Allstate’s stated reason for terminating him must be pretextual. (Pl. Resp. Br. at 10-11.) In
particular, Plaintiff argues that Balazs should have made at least “a rudimentary inquiry” into
whether the “Move, Add, Change” program was in fact password protected, whether Plaintiff
delivered everything to the MAI team as he was asked, and whether Rosado’s system was so
outdated that the program could not be installed. (/d.) Plaintiff also criticizes Noe’s reliance on
the aforementioned string of emails in taking part in the decision to terminate Plaintiff. (See id.
at 11.)

These arguments are without merit. Plaintiff cites to no facts in support of his conclusory
assertions that Allstate’s investigation was not sufficient. Even if he did, however, the Seventh
Circuit has repeatedly instructed that a district court does not “sit as a super-personnel
department that reexamines an entity’s business decisions.” Balderston, 328 F.3d at 324; see
also Aungst, 937 F.2d at 1220 (under the ADEA, a company’s hiring and firing practices can be
“medieval,” “high-handed,” or “mistaken” so long as they do not discriminate on the basis of
age) (citations and internal quotations omitted). Allstate investigated the password issue as it saw
fit, and the Court is not entitled to second-guess Allstate’s investigation and subsequent
termination decision in the absence of any showing that Allstate did not honestly believe in its
reasons for terminating Plaintiff. See Kariotis, 131 F.3d at 677 (“[A] reason honestly described
but poorly founded is not a pretext as that term is used in the law of discrimination.”) (internal
citation omitted). Plaintiff's rebuttal must “point to facts suggesting that [Allstate] investigated
[him] differently because [he] was an older employee. . . .” Jd. All Plaintiff offers is a broadside
of conclusory complaints about the alleged inadequacy of Allstate’s investigation, and this

simply is not adequate to show pretext. See id. (holding that, even if defendant’s decision

39



Likewise, Plaintiffs complaint that he was never assigned an “employee advocate” for
the MAI job does not, by itself, constitute evidence of preferential treatment for any of the
purported younger comparators. Plaintiff cites no evidence that younger CTS employees
working outside of CTS on similar assignment received employee advocates.

Finally, although not necessary to the rejection of Plaintiff's prima facie case, it bears
mention that none of the allegedly similarly situated comparators engaged in workplace
misconduct of the sort that Plaintiff did. Up until the time that Plaintiff engaged in the password
stonewalling, he was highly rated at Allstate: Allstate was pleased with him and he appears to
have been pleased with Allstate. In fact, after Plaintiff's last performance review, just months
before the password incident that prompted his firing, Plaintiff stated his appreciation to his
entire Allstate management team for their support and for “giving [him] an opportunity to move
up and branch out from [his] previous job responsibilities.” (Def. SF { 11.) Whether Plaintiff
had a particular type of software or not, as compared to a colleague or new hire, for example, is
not relevant when the other individuals never engaged in the type of employee misconduct that
Plaintiff did immediately prior to his firing. See, e.g., Radue, 219 F.3d at 618-19.

2. Plaintiff's “Mini-RIF” Formulation

Plaintiff also argues that younger employees assumed his duties following his termination
and that this fact carries the day with respect to making a prima facie showing. In effect, Plaintiff
argues that the Seventh Circuit’s “mini-RIF” standard should apply, wherein a plaintiff may

satisfy the fourth prong with evidence that sufficiently younger employees absorbed his duties or

Court has found nothing in the record to indicate that Allstate treated Rosado preferentially or
that she otherwise qualifies as a younger comparator for Plaintiff's purposes.

27



{1 20-21.) In March 2001, Balazs again gave Plaintiff an “exceeds” rating on his yearly
performance evaluation. (Jd. {| 22, 24.) The “exceeds” rating is the highest an Allstate employee
can receive. (Def. SF J 10.)

The events giving rise to this suit began shortly after Plaintiff's March 2001 performance
evaluation. Plaintiff had developed a Microsoft Outlook program for use by the approximately
300 employees within CTS. (Pl. SAF J 16.) In April 2001, Balazs instructed Plaintiff to install
the program—known as “Move, Add, Change”—on computers used by the Multiple Access
Integration Team (“MAI team” or “MAI”), an Allstate department outside CTS. (Id. { 26; Def.
SF 12.) Allstate had recently created the MAI team to develop web sites enabling consumers to
buy insurance over the Internet. (Def. SF § 12.) The “Move, Add, Change” program would
facilitate Allstate’s efforts to hire and process new employees into the MAI team by
consolidating into one system all information regarding the new employees’ administrative
needs. (/d.)

On April 30, 2001, Plaintiff met with members of the MAI team. (Pl. SAF { 30; Def. SF
4 13.) The parties dispute what happened at this meeting and immediately afterwards. Plaintiff
claims that no one on the MAI team gave him a deadline or otherwise indicated any pressing
need for the program. (Pl. SAF { 31.) Allstate alleges that Lydia Rosado (“Rosado”), one of the
MAI team application specialists, told Plaintiff that MAI team resource managers needed to be
able to use the “Move, Add, Change” program “right away,” because the team was hiring some
new employees. (Def. SF 13.) At any rate, it is undisputed that Plaintiff presented the MAI
team with the program sometime that same day. (/d. ] 14.) Plaintiff asserts that, due to technical

problems, he was unable to successfully install the program on the MAI team’s computers. (PI.



F.3d at 753) (alteration omitted).!? Regardless of whether direct evidence must always take the
form of an outright admission, as opposed to something less, the law is clear that direct evidence
(as the name implies) must speak directly to the issue of discriminatory intent, and, equally
important, it must relate to the specific employment decision in question. See, e.g., Cowen v.
Glenbrook Sec. Servs., Inc., 123 F.3d 438, 443 (7th Cir. 1997). A plaintiff using direct evidence
to prove age discrimination must establish that he would not have been discharged but for his
employer’s motive to discriminate against him on the basis of age. See Mills v. First Fed’l Savs.
& Loan Ass’n of Belvidere, 83 F.3d 833, 840 (7th Cir. 1996). If an employer has expressed
discriminatory feelings, the court looks to whether the expression occurred “(1) around the time
of, and (2) in reference to, the adverse employment action complained of.” Hunt v. City of

Markham, 219 F.3d 649, 652 (7th Cir. 2000).

” The Seventh Circuit has explained that evidence of this sort is exemplified by
statements such as “I fired you because of your age.”” See Robin v. Espo Eng’g Corp., 200 F.3d
1081, 1088 (7th Cir. 2000); see also Castleman, 959 F.2d at 1420 (teaching that direct evidence
will “rarely” be found).

3 Perhaps recognizing the difficulty of finding explicit direct evidence of the type
outlined above, the Seventh Circuit has also held that a plaintiff, under the direct method of
proof, may overcome summary judgment by “constructing a convincing mosaic of circumstantial
evidence that allows a jury to infer intentional discrimination by the decisionmaker.” Cerutti,
349 F.3d at 1061 (citations and internal quotations omitted). This “mosaic” of circumstantial
evidence, however, “must point directly to a discriminatory reason for the employer’s action.”

Id. (citation omitted). Other Seventh Circuit authority treats an alleged “mosaic of circumstantial
evidence” as indirect evidence that is often best analyzed through the classic McDonnell Douglas
burden-shifting framework. See, e.g., Robin, 200 F.3d at 1090 (“Whether the evidence is
characterized as ‘indirect’ or ‘mosaic’ evidence, very often the best way to evaluate the plaintiff's
case at the summary judgment stage is to use the McDonnell Douglas steps. .. .”). The parties in
this case have briefed circumstantial evidence issues using the McDonnell Douglas framework,
and because the parties’ approach is consistent with the Seventh Circuit’s teaching in Robin, the
Court will proceed with the analysis as framed by the parties. See Robin, 200 F.3d at 1090; see
also discussion infra Part B. Whatever approach one might use to analyze the record in this case,
the Court believes that summary judgment is appropriate, as explained further below.

14



what caselaw deems a “stray remark.” If anything, a more reasonable inference might be that
Balazs—himself age 43 at the time (Def. SF {| 4)—was making a negative comment regarding
Rahman’s age, not Plaintiff's. Or perhaps the alleged comments (assuming they occurred, as that
is disputed) were prompted by Balazs’s unfamiliarity with Saifur Rahman, at least during the
initial period that Rahman started working with Balazs, or with possible difficulty confidently
pronouncing Saifur Rahman’s name in these early days. In any event, it is clear that a jury could
not, “without reliance on inference or assumption,” conclude that Balazs’s alleged statements
prove that Allstate discriminated against Plaintiff on the basis of age. Plair v. E.J. Brach &
Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). And there is no evidence to suggest that the stray
remark was related to Plaintiff or his termination. See Gorence v. Eagle Food Centers, Inc., 242
F.3d 759, 762 (7th Cir. 2001) (“{A] ‘stray’ remark[] [is] a remark which fails to show
discrimination unless it is related to the employment decision.”); Hong v. Children’s Memorial
Hosp., 993 F.2d 1257, 1266 (7th Cir. 1993).

A review of Seventh Circuit precedent confirms that the alleged use of “the kid” to refer
to Rahman does not constitute any direct evidence of age discrimination against Plaintiff. See,
e.g., Cerutti, 349 F.3d at 1063 (even if plaintiff was the subject of questions such as ““How’s the
old man doing today?’” such statements were “clearly not sufficient to establish .. . age
discrimination under the direct method of proof’); Gorence, 242 F.3d at 766 (holding that even if
defendant’s officer referred to promoted managers as “young” and “aggressive,” that did not
constitute direct evidence of age discrimination against passed-over plaintiff and was not
evidence “connect[ed] to a decision regarding [plaintiff]”); Fuka v. Thompson Consumer Elecs.,

82 F.3d 1397, 1403 (7th Cir. 1996) (no direct evidence of age-motivated firing from supervisor’s

16



Plaintiff began work for Allstate in a full-time, permanent position in December 1995.
(Defendant’s L.R. 56.1(a) Statement of Facts (“Def. SF”) 8.) He was assigned to the Local
Area Network Team in Allstate’s Claim Technology Services Department (“CTS”). (Id.)
Plaintiff's primary duties involved deploying PCs and maintaining Novelle servers, although he
eventually took on other responsibilities. (Plaintiff's L.R. 56.1(b) Statement of Additional Facts
(“P1. SAF”) {ff 8-9.) At the times relevant to the instant case, Plaintiff was assigned to the
Testing and Architecture Support Team (“TAS” or “TAS team”), one of a number of teams
within CTS’s computing platform management division. (See Def. SF | 9.) There, Plaintiff
started to develop computer forms and applications for Microsoft Outlook. (Pl. SAF { 13.) He
also maintained another Microsoft product, the Visual Source Safe Library (“VSSL”), which was
a highly secure repository for source code developed by Allstate. (/d. J 11.) Plaintiff also
worked on the TAS team’s problem management system. (Jd. 77.) It is undisputed that
Plaintiff was a talented programmer and that many Allstate employees sought his technical
assistance. (Id. {J 14, 21-25; Def. SF {J 10-11.)

In December 1998, Paul Balazs (“Balazs”) became Plaintiff’s team leader on the TAS
team. (Def. SF { 9.) By all accounts, Plaintiff was a good employee for most of the period he
worked under Balazs’s supervision, and Balazs rated Plaintiff highly. For example, in May 2000.

>

Balazs rated Plaintiff's work for the 1999 calendar year as “exceeds all expectations.” (Pl. SAF

where statements of fact or responses are unsupported or otherwise are made in violation of L.R.
56.1, the Court has disregarded the improper assertion or denial and accepted the conforming
version as true. See, e.g., Brasic v. Heinemann’s Inc., 121 F.3d 281, 284 (7th Cir. 1997). The
Court notes that Plaintiff in particular has improperly denied a number of Defendant’s properly
supported factual assertions. The Court specifically addresses the more egregious violations of
LR. 56.1, as explained further below.



his March 2002 charge with the EEOC, filed under penalty of perjury, Plaintiff stated that he was
fired for allegedly failing to give the password but that “[t]he password was not within my
control because I was not permitted in the building where the system was located.” (Def. SF 4 6;
PI. Resp. SF 6.)

By way of contrast, Plaintiff's story in the case sub judice markedly changed at his
deposition and in his affidavit, in which he repeatedly claimed that there was no password at all.
(See, e.g., Pl. SAF ff 42-45; Def. SF Ex. B at 43, 150, 160-161; Vonckx Aff. “Pl. Resp. Ex.”) J]
13, 15, 17, 20.) However, Plaintiff cannot contrive a factual dispute over the password by
admitting in his sworn IDES testimony that he did not turn over the password and then, at his
deposition and in his affidavit, deny that the password even existed or that he had turned it over
and had so informed Balazs. See, e.g., Patterson, 150 F.3d at 724 (“[A] party cannot create an
issue of fact by submitting an affidavit whose conclusions contradict prior testimony.”); Bank of
Mlinois, 75 F.3d at 1169 (collecting cases)?’

In addition, Plaintiff cannot explain away his divergent deposition and affidavit testimony
by arguing that these statements are merely clarifications of his prior sworn testimony at the
IDES hearing. After examining the IDES testimony in its entirely, the Court concludes that there
is no ambiguity in his IDES testimony in which Plaintiff conceded the existence of a password,

that he did not provide it at the time he was fired, and that he did not explain why he had not

password up... .”).

27 Although not material to the Court’s decision, the Court notes that all of the other
deponents in the case (Balazs, Noe, Rosado, and Zielinski), testified that Plaintiff had password-
protected the “Move, Add, Change” Program. (Def. SF Ex. G at 79; Def. SF Ex. F at 34; Def. SF
Ex. E at 17-18; Def. Resp. Ex. at 11-13.) Their testimony was consistent with and similar to
Plaintiffs sworn testimony at the IDES hearing that Balazs had requested the password and
Plaintiff did not provide it.

37



Court found anything in the record, to indicate that Rahman is analogous to Plaintiff in terms of
attributes, experience, education, or qualifications. See Radue, 219 F.3d at 618. Thus, Plaintiff
cannot reasonably claim Rahman as a similarly situated comparator. It is therefore not relevant
whether, as Plaintiff alleges, Rahman received new equipment and software, or the benefits of
Method One." It is also irrelevant that Balazs and Noe, as Plaintiff claims, did “everything they
could to help their new hire [Rahman].” (Def. SF 56.) There is nothing unusual or unlawful
about Balazs or Noe helping a new hire to the extent they could, and Plaintiff cites no evidence
of discrimination beyond his conclusory assertion that they did nothing for him while he “was
struggling at MAI.” (Jd.)

Likewise, Plaintiff cannot reasonably contend that Steve Wright (“Wright”) was similarly
situated.” Plaintiff cites to nothing with which one could reasonably find that Wright possessed
analogous attributes, experience, education, or qualifications to Plaintiff. See Radue, 219 F.3d at
618. Plaintiff points to no evidence, for example, that Wright performed the same sort of work

that Plaintiff did or that Wright had any other similarity to Plaintiff! True, Wright was assigned

'° Balazs at his deposition explained that Plaintiff did not have Method One because
Plaintiffs work for the MAI team was considered a task, not a project. (Def. SF Ex. G at 89.)
Method One, as explained in footnote 16 supra, is a development methodology that CTS used for
projects, not merely for work assignments like Plaintiffs. (Def. SF Ex. G at 89.)

20 As he did with Jessica Wright, see footnote 17 supra, Plaintiff makes the conclusory
argument that Steve Wright is a younger comparator, but cites neither party’s statement of facts
or anything in the record. (Pl. Resp. Br. at 8.)

? Other than Plaintiffs conclusory assertion that Steve Wright “had all of the latest
software,” (Pl. SAF { 84), the only other statements of fact regarding Wright come from
Allstate’s statement of facts. (Def. SF {J 28-29, 59-60.) The Court need not scour the record in
search of facts in support of Plaintiff’s efforts to defeat summary judgment, see Little, 71 F.3d at
641, especially when Plaintiff failed to present such facts as L.R. 56.1 requires.

25



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ROBERT VONCKX, ) - ay AN
) Wr ®
Plaintiff, yt
v. ) No. 02 C 8474
)
) Judge Mark R. Filip
ALLSTATE INSURANCE COMPANY, )
) Magistrate Judge Mason
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Robert Vonckx (“Vonckx” or “Plaintiff’) brings this action against his former
employer, Allstate Insurance Company (“Allstate” or “Defendant”). Plaintiff alleges that Allstate
terminated his employment in violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seg. Allstate has moved for summary judgment pursuant to
Federal Rule of Civil Procedure 56. As explained below, Allstate’s motion is GRANTED.

I. FACTS'

' The relevant facts are taken from the parties’ respective Local Rule 56.1 (“L.R. 56.1”)
statements of facts and exhibits. L-R. 56.1 requires that statements of facts contain allegations of
material fact (not legal conclusions) and the factual allegations must be supported by admissible
record evidence. See L.R. 56.1; Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000). The
Seventh Circuit has “consistently and repeatedly upheld a district court’s discretion to require
strict compliance” with L.R. 56.1. Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524,
527 (7th Cir. 2000). Each party has objected to a number of L.R. 56.1 statements made by the
other. Where the parties disagree over the relevant facts, the Court sets forth the competing
versions. In addition, the Court, as it must, resolves genuine factual ambiguities in Plaintiff's
favor. Foley v, City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004), However, precedent teaches
that alleged factual conflicts should not be resolved in a party’s favor if the alleged ambiguities
arise from affidavit or deposition statements that contradict earlier sworn testimony by the party.
See, e.g., Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998)
(collecting cases); Diliberti v. United States, 817 F.2d 1259, 1263 (7th Cir. 1987). Moreover,

1



that Plaintiff had password-protected the “Move, Add, Change” source code and did not remove
the password for MAI. (See Def. SF Ex. G at 79; Def. SF Ex. F at 34; Rosado Tr. (“Def. SF Ex.
E”) at 17-18; Zielinski Tr. (“Def. Resp. Ex.”) at 11-13.) Plaintiff then refused to divulge this
password to MAI or his superiors, despite repeated requests that he do so. (Def. SF {] 46.)
Allstate considered Plaintiff’s repeated refusals to be misconduct” and terminated him on that
basis. (Def. SF 36.) Because Allstate’s articulated reason for terminating Plaintiff appears
facially valid and nondiscriminatory, Plaintiff must show that Allstate’s reason is pretextual. See
Kariotis, 131 F.3d at 676.

In response, Plaintiff argues that the password issue is merely a pretext for its age
discrimination and that “Defendant’s spurious reasons for Plaintiff's termination must be
summarily rejected.” (Pl. Resp. Br. at 9.) To successfully challenge Allstate’s articulated reason
and thereby establish pretext, Plaintiff must specifically rebut it. See Kariotis, 131 F.3d at 677
(collecting cases). A plaintiff's rebuttal, however, “is not an invitation to criticize the employer’s
evaluation process or simply to question its conclusion about the quality of an employee’s
performance.” Jd. Instead, a plaintiff's “rebuttal must include facts tending to show that the
employer’s reasons for some negative job action are false, thereby implying (if not actually
showing) that the real reason is illegal discrimination.” Id.

Plaintiff offers three reasons why he believes Allstate’s stated reason is pretextual. The

Court concludes that none of Plaintiff's arguments—or the facts cited in support—individually or

5 Plaintiff denies the allegations in Defendant’s { 36 as “conclusory, argumentative,
[and] speculative[,]” without citing to relevant facts in the record, and objects to the paragraph’s
form. (PI. Resp. | 36.) For the reasons set forth in footnotes 4 and 9 supra, Plaintiff's denial is
improper, and the allegations in Defendant’s {| 36 are deemed admitted.

33



But even if all of these speculations are true, none gives rise to an inference of age discrimination
in violation of federal law. “It is well settled in [the Seventh Circuit] and other circuits that an
employer may terminate an employee for any reason, good or bad, or for no reason at all, as long
as the employer’s reason is not proscribed by a Congressional statue.” Kahn v. United States
Sec. of Labor, 64 F.3d 271, 279 (7th Cir. 1995); see also Balderston, 328 F.3d at 323
(“[E]mployers may terminate competent employees older or otherwise because they do not like
them.”) (citation and internal quotation marks omitted); Kariotis, 131 F.3d at 677 (“No federal
tule requires just cause for discharges.”). In short, Allstate has articulated a legitimate,
nondiscriminatory reason for terminating Plaintiff. Plaintiff has not provided any evidence to the
contrary by which a reasonable jury could find otherwise.
IV. CONCLUSION

Plaintiff has not pointed to any facts raising a genuine material issue that would defeat
Allstate’s motion for summary judgment. For the reasons set forth above, Allstate’s motion for
summary judgment is GRANTED.

So Ordered.

Med. tes

Mark Filip {,
United States District Judge
Northern District of Illinois

Dated: JUN 2 9 2004

42



“constructively replaced” Plaintiff following his termination. See Bellaver, 200 F.3d at 494-495
(citation omitted).

In his brief, Plaintiff argues (without citation to any authority), that “[t]he only dispositive
issue is whether younger employees assumed any of Plaintiff's job duties. They did, and the
Court need not inquire further.” (Pl. Resp. Br. at 8 n.2.) (emphasis in original). The Court
respectfully disagrees. Caselaw indicates that Plaintiff must do more than merely show that
younger employees absorbed any of his duties. Instead, it appears that Plaintiff must show that
his duties, at the least, were absorbed mostly by younger employees. See, e.g., Bellaver, 200 F.3d
at 495 (citing Seventh Circuit caselaw in which plaintiff showed that duties “were absorbed
mostly by younger workers”) (emphasis added and citation omitted); Kazhinsky v. Meyer & Sons,
Ine., No. 02-C-7254, 2003 WL 22735867, at *5 (N.D. Ill. Nov. 19, 2003) (collecting cases and
holding that, “[bJecause half of the individuals who assumed [the ADEA plaintiff's] job duties
were in the protected class [i.e., of a protected age], she cannot show that her duties were
assumed solely or even primarily by employees outside the protected class”). Under this
standard, Plaintiff cannot make a prima facie case under the mini-RIF formulation, either.

In this regard, Plaintiff provides evidence that younger workers outside the protected class
absorbed some small amount of his duties. For example, Plaintiff claims that, after his
termination, Rahman took on Plaintiff's duties with respect to the VSSL and maintained the
forms that plaintiff developed. (Pl. SAF { 78.) Plaintiff also alleges that Rahman took on his
“Move, Add, Change” responsibilities. (/d. { 79.) Finally, Plaintiff asserts that Kawhon Taylor
(“Taylor”) (age 25) eventually took over his VSSL responsibilities. (/d. 83.)

Closer scrutiny of the record reveals that these assertions are not sufficient to make

28



1320 (7th Cir. 1993), that raise more than a scintilla of evidence to show a genuine triable issue
of material fact. See Murphy v. ITT Educ. Servs., Inc., 176 F.3d 934, 936 (7th Cir. 1999)
(citation omitted).

In an employment discrimination case, a plaintiff may avert summary judgment “by
presenting enough evidence . . . of discriminatory motivation to create a genuine issue for trial.”
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000) (citation omitted). In
deciding a motion for summary judgment, the Court can only consider evidence that would be
properly admissible at trial. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562
(7th Cir. 1996). The Court views the record and all reasonable inferences drawn therefrom in the
light most favorable to the nonmovant. See Fed R. Civ. P. 56(c); Foley 359 F.3d at 928.

Ill. DISCUSSION

Under the ADEA, it is “unlawful for an employer . . . to discharge any individual or
otherwise discriminate . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). An
employee must be over forty years old to be within the protected class defined by the ADEA. 29
US.C. § 631(a). An employer’s “liability [under the ADEA] depends on whether . . . [age]
actually motivated the employer’s decision.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610
(1993) (citations omitted). When evaluating an ADEA case, the Court does not, however, pass
on the wisdom or fairness of an employer’s otherwise lawful business decisions—“{n]either the
jury nor this Court is empowered to act as a ‘super-personnel department’ and decide if [an
employer’s employment decision] was unwise or unjustified.” Castleman v. Acme Boot Co., 959
F.2d 1417, 1422 (7th Cir. 1992) (citation omitted); accord, e.g., Aungst v. Westinghouse Elec.

Corp., 937 F.2d 1216, 1220 (7th Cir. 1991) (under the ADEA, a company’s hiring and firing

12



A. Plaintiff's Direct Evidence

Plaintiff provides only one example of what he believes to be direct evidence that
Defendant discriminated against him on the basis of age. Plaintiff argues that Balazs made
“blatantly ageist remarks contemporaneous with the decision to terminate [Plaintiff].” (Pl. Resp.
at 4.) Specifically, Plaintiff alleges that Balazs referred to Saifur Rahman—in the month
between the time Rahman started working and Plaintiff was fired (Def. SF Ex. B at 119)—as
“the kid,” not by his name, Saifur Rahman. (PI. Resp. Br. at 5; Pl. SAF 475.) Plaintiff claims
that Balazs’s alleged statements are “crystal clear direct evidence” of discrimination against
Plaintiff. (Pl. Resp. Br. at 5.)

The Court finds that Balazs’s alleged reference to Rahman as “the kid” hardly rises to the
level of direct evidence of age discrimination against Plaintiff. As a practical matter, it is
difficult for a plaintiff to show direct evidence of impermissible motive on the part of an
employer and such comments are “rarely found.” Radue, 219 F.3d at 616 (7th Cir. 2000);
accord, e.g., Castleman, 958 F.2d at 1420. The evidence must essentially be an admission that
Plaintiff's firing was motivated by animus toward his age (forty-three). See Radue, 219 F.3d at
616. Equally important, for Balazs’s remarks to “qualify as direct evidence of discrimination,
Plaintiff must show that the remarks were related to the employment decision in question.”
Robin, 200 F.2d at 1089 (internal quotation and citation omitted).

Balazs’s alleged use of the term “the kid” for Rahman does not suffice under Seventh
Circuit precedent—both because it is not evidence of the clarity required to constitute direct
evidence of discrimination, and also, independently, because such alleged statements are not

sufficiently related to Plaintiff's termination. At most, Balazs’s use of “the kid” appears to be

15