are stricken.’

fi. Factual Background

Plaintiff began working for defendant in 1989. Defendant sells commercial art,
photographic and other media products for the advertising industry. Defendant maintains an
employment policy that prohibits conduct that may cause emotional or physical harm to other
employees or cause friction within the company. The policy also prohibits employees from
bringing any firearm or ammunition onto company property, and prohibits the unauthorized use
of company property or equipment. The policy provides that employees who violate it may be
subject to disciplinary action, including termination. Another policy prohibits employees from
using company electronic communication and information systems in a way that may be
disruptive, offensive to others, or harmful to company morale.

During much of plaintiff's employment with defendant, plaintiff worked as a sales
representative. Plaintiff received a fifteen-percent commission on his sales; other employees
who began working for defendant after plaintiff received only an eight-percent commission.
Plaintiff met all his sales goals and quotas, and management was satisfied with his sales
performance during his employment with defendant. However, beginning in 1996, management
received complaints from plaintiff's co-workers that they were frightened of plaintiff and did not

want to work with him.>

> Defendant challenges plaintiff's complaint that defendant’s characterization of a
document as a letter was improper. Plaintiffs assertion is not relevant to the court’s inquiry.

> Plaintiff objects to the admissibility of evidence of employee complaints as hearsay.
However, the complaints are not offered to prove the truth of the matter asserted, but rather to
establish that defendant’s managers held an honest belief that plaintiff engaged in conduct that
justified his termination. See Brill v. Lante Corp., 119 F.3d 1266, 1271 (7" Cir. 1997).

4


man’s industry, were statements made at least four months prior to plaintiff's termination, and
were not otherwise causally connected with his termination. Plaintiff has failed to raise a
genuine issue of material fact under the direct method of proving age discrimination.

B. Indirect Proof of Discrimination

Plaintiff also attempts to raise an inference of discrimination by using the burden-shifting
analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that
analysis, a plaintiff first must establish a prima facie case of intentional age discrimination by
showing that: (1) he was a member of a protected class (age forty or older), (2) he performed his
job satisfactorily, (3) he suffered a materially adverse employment action, and (4) younger,
similarly situated employees were treated more favorably. Horwitz v. Board of Educ., 260 F.3d
602, 610 (7" Cir. 2001). The defendant must then rebut the prima facie case by articulating a
legitimate, nondiscriminatory reason for the contested employment action. Chiaramonte, 129
F.3d at 398. The burden then shifts back to the plaintiff to show that the employer’s stated
reason is pretextual. Id.

There is no dispute that plaintiff falls within the protected age group, or that defendant
discharged him. Defendant contends that plaintiff cannot make a prima facie case of
discrimination because he fails to establish that he was performing his job satisfactorily, and that
younger employees were treated more favorably.

Regarding the second prong of the McDonnell Douglas analysis, defendant argues that
the evidence of plaintiff's behavioral problems shows that he was not performing his job
satisfactorily. Defendant certainly could legitimately expect plaintiff, as part of his job, to

behave in a nondisruptive manner, to refrain from bringing guns and ammunition into the


would be terminated if there were any other complaints.

It is unclear whether plaintiff's behavioral problems continued after October 1999.
Although defendant claims that during that period some employees threatened to resign if they
were not transferred away from plaintiff, it offers no admissible evidence in support of this claim.
Curtis testified in her deposition that Kohler had told her this information, a statement that is
inadmissible hearsay. Curtis otherwise only testified that plaintiff's relationship with the
company did not improve during the period after October 1999, and that she did not recall any
specific incidents. Powers similarly testified that Kohler expressed concerns about two
employees who threatened to resign if they were not transferred away from plaintiff, which again
is inadmissible hearsay. Kohler testified in his deposition that an incident involving plaintiff
precipitated the decision to terminate him, but Kohler did not recall what that incident was.

In late December 1999 or early January 2000, Kohler, Powers, and Curtis discussed
plaintiff's behavior and considered discharging him. On January 28, 2000, plaintiff was
informed that his employment with defendant was terminated, effective immediately. At that
time, plaintiff was over forty years old.

After plaintiff was discharged, an employee in his early thirties, Tom Weiner, assumed
“basically the same accounts” that had previously been plaintiff's responsibility. Various other
employees also assumed some of plaintiffs former responsibilities.

Il. Discussion

Summary judgment is appropriate “if 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


In November 1996, plaintiff had an argument at work with co-worker David Larimer.
Larimer wrote a letter to management regarding the argument, expressing fear, stating that
plaintiff had threatened him with physical violence, and relating a concern that plaintiff had guns
and ammunition on company property. Plaintiff wrote his own letter to management admitting
his fault in the matter. In a meeting with management and plaintiff, Larimer acknowledged that
he was also to blame for the incident.

qn March 1999, plaintiff wrote a fantasy story that graphically described a sexual
encounter between two co-workers. One of plaintiffs co-workers found the story on a printer at
the office, and she and another co-worker complained to management about it. The story was
printed from plaintiff's computer, and he admitted to having written it at work. Management
told plaintiff that this action was a serious offense and violated company policy. Management
encouraged plaintiff to seek counseling from the Employee Assistance Program, which he did.

Defendant’s managers continued to receive complaints regarding plaintiff's behavior.
One of plaintiffs co-workers requested a transfer out of plaintiff's group because she felt
uncomfortable and intimidated by him, although she eventually asked to be transferred back
under plaintiff. Plaintiff was repeatedly told to correct his behavior and to stop scaring other
employees,

On October 25, 1999, human resource director Donna Curtis, and managers Doug Kohler
and Raymond Powers met with plaintiff to discuss his behavior. At that meeting, the managers
informed plaintiff that several employees had complained about plaintiff's behavior and volatility
in the workplace. Plaintiff acknowledged that his behavior required adjustment. The managers

suggested that plaintiff seek counseling to help control his behavior, and advised him that he


391, 396 (7" Cir. 1997). As direct evidence of discrimination, plaintiff claims that at some point
between April 1999 and September 1999, Powers stated that “older people cost more money to
insure and cost everybody to have higher insurance rates.” In addition, plaintiff claims that at
some point between April 1999 and September 1999, Kohler, who had the absolute authority to
fire him, stated that “the industry was becoming a young man’s industry; that most of the clients
were young and they related more to people their age.” Kohler also testified that other employees
had indicated to him that plaintiff was unwilling to adapt as the industry changed. Defendant
denies that the first two statements were made.

As arule, a statement is direct evidence of discrimination only if it relates to the
motivation of the decision maker responsible for the contested decision. Cheek v. Peabody Coal
Co., 97 F.3d 200, 203 (7" Cir. 1996), Even the remarks of a decision maker do not give rise to
an inference of discrimination if they are unrelated to the employment decision in question.
Fuka, 82 F.3d at 1403. “To be probative of discrimination, isolated comments must be
contemporaneous with the discharge or causally related to the discharge decision making
process.” Geier v, Medtronic, Inc., 99 F.3d 238, 242 (7" Cir. 1996).

Here, Kohler’s testimony that some employees brought it to his attention that plaintiff
was unwilling to adapt was not a remark attributable to Kohler, or any decision maker, and its
subject was not even necessarily related to plaintiff's age. In addition, even if the court assumed
that the remarks plaintiff attributes to Powers and Kohler were made as he claims, they would be
insufficient to warrant an inference of discrimination because plaintiff fails to establish that any
discriminatory remark was in any way related to his termination. Powers’ comment that older

people are more costly to insure, and Kohler’s comment that the industry was becoming a young


Minute Order Forp (0697)

United States District Court, Northern District of Illinois

Ni f Assigned Judy i Sitting Judge if Other
ape Magistrate Judge George W. Lindberg than Assigned Suge
CASE NUMBER 01 C 683 DATE V/ 14/2002
CASE Dominic Minervini vs. Seven Worldwide, Inc.
TITLE

{In 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:

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

(2) i] Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer briefdue___.

(4) QO Ruling/Hearing on setfor_____at

(5) Oo Status hearing[held/continued to] [set for/re-set for]on__——sset for at.
(6) Oo Pretrial conference{held/continued to] [set for/re-set for]on__—setfor_——sat_—
”) Oo 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}

COFRCP4(m) O General Rule 21 COFRCP41(a)(1) CI FRCP41(a)(2).

ao [Other docket entry] | Defendant’s motion to strike portions of plaintiff's response to defendant’s
statement of facts, and portions of plaintiff's statement of facts, is granted in part. Defendant’s motion
for summary judgment is denied. Enter memorandum opinion and order.

a1) [For further detail see order attached to the original minute order.]

‘No notices required, advised in open court. : Document

Number,

No notices required. number of notices

Notices mailed by judge’s staff.

Jane 1-6 2002

Notified counsel by telephone. date docketed

oY | Docketing to mail notices.

Mail AO 450 form.

pk

Copy to judge/magistrate judge.

<date mailed notice
courtroom

SLB deputy’s
initials

_Date/time reegived in ; i
central Clerk’s Office ‘mailing deputy initials



Having found that plaintiff has established a prima facie case of discrimination, the court
next turns to the question of whether defendant has articulated a legitimate, nondiscriminatory
reason for plaintiff's termination. The court finds that defendant has met this burden;
discharging an employee for ongoing behavioral problems, many (if not all) of which violate
company policy, is a legitimate, nondiscriminatory reason.

The burden now shifts back to plaintiff to offer evidence that defendant’s articulated
reason was merely a pretext for age discrimination. “This showing may be made by introducing
evidence that demonstrates that (1) the proffered reasons are factually baseless; (2) the proffered
Teasons were not the actual motivation for the discharge; or (3) the proffered reasons were
insufficient to motivate the discharge.” Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7" Cir.
1996). This inquiry is similar to the analysis of whether a plaintiff has established the second
element of the prima facie case, since if he establishes that he met his employer’s legitimate
expectations, he would also rebut any performance deficiencies cited by the employer as a reason
for discharging him. Fuka, 82 F.3d at 1404.

Based on the evidence offered here, a reasonable jury could conclude that plaintiffs
behavioral problems were resolved in October 1999, well before he was terminated, and that
accordingly defendant’s articulated reason for terminating plaintiff was not its true one. The
court finds that the three-month gap between the last incident of plaintiffs misbehavior and
plaintiff's termination raises sufficient doubt as to defendant’s proffered reason to make
summary judgment inappropriate. Having met his burden at this stage of showing that
defendant’s proffered reason is false, plaintiff need not come forward with further evidence of

intentional discrimination to survive summary judgment. See Fuka, 82 F.3d at 1404,

11


workplace, and to use company equipment and systems appropriately in conformance with
company policy. However, there is no evidence in the record that any of these behavioral
problems occurred immediately prior to plaintiff's termination. The evidence before the court
establishes that on October 25, 1999, defendant’s managers told plaintiff that several employees
had complained about his behavior, and warned him that he would be terminated if there were
any other complaints about his behavior. Three months later, on January 28, 2000, plaintiff was
discharged. There is no evidence that management received any complaints about plaintiff in the
three months prior to his termination, and the parties agree that his sales performance during that
period was satisfactory. This three-month gap may or may not prove significant in the end, but at
this stage it is sufficient to raise an issue of material fact as to whether plaintiff was performing
his job satisfactorily prior to his termination.

The court also finds that there is a genuine issue of material fact as to the fourth prong of
the McDonnell Douglas analysis. In cases involving the termination of a single employee — that
is, a situation not involving a reduction in force or other restructuring — normally the employee
must establish that the employer sought to replace him with a substantially younger person.

Miller v. Borden, Inc., 168 F.3d 308, 313 (al Cir. 1999). In this case, although defendant

maintains that no employee replaced plaintiff, a substantially younger employee assumed
plaintiff's former accounts. In addition, other employees also assumed some of plaintiff’s former
responsibilities; their ages are unknown. The court finds that there is a genuine issue of material

fact with regard to whether defendant replaced plaintiff with a substantially younger person.

* Plaintiff argues that defendant’s only legitimate expectation relating to his job
performance could be whether he met his sales goals, and that his behavior is irrelevant to
whether he was performing his job. The court finds this argument absurd.

10


matter of law.” Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the initial
burden of identifying “those portions of [the record] which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-
movant must then come forward with “specific facts showing that there is a genuine issue for
trial.” Fed. R. Civ. P. 56(e). The court must review the evidence and draw all reasonable

inferences in favor of the non-moving party. Associated Milk Producers, Inc. v. Meadow Gold

Dairies, Inc., 27 F.3d 268, 270 (7" Cir. 1994). The Seventh Circuit has noted that the summary
judgment standard should be applied with “added rigor in employment discrimination cases,

where intent and credibility are crucial issues.” Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035,

1038 (7" Cir. 1993).

Plaintiff claims that defendant terminated his employment because of his age in violation
of the ADEA, 29 U.S.C. § 621 et seq. To prevail on his ADEA claim, plaintiff must show that
his termination would not have occurred but for defendant’s motive to discriminate based on
plaintiff's age. See Taylor v. Canteen Corp., 69 F.3d 773, 779 (7" Cir. 1995). Plaintiff can meet
this burden head-on by introducing direct evidence from which an inference of age

discrimination may be drawn, or he can rely on the burden-shifting formula set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Fuka v. Thomson Consumer

Elecs., 82 F.3d 1397, 1402 (7 Cir. 1996); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120,

1122 (7 Cir. 1994). In this case, plaintiff attempts both.
A. Direct Proof of Discrimination
Ina discrimination case, direct evidence is that which can be interpreted as an

acknowledgment of discriminatory intent. Chiaramonte v, Fashion Bed Group, Inc., 129 F.3d



the record. Finally, the last sentence of the responses to paragraphs 32 and 33, stating that “it
appears that Mr. Wiener did in fact replace Plaintiff,” is conclusory. These statements are
stricken.’

Defendant also objects to a number of statements in plaintiff's statement of additional
facts, filed pursuant to Local Rule 56.1(b)(3)(B): 2, 3, and 6 through 8. Plaintiff's statement in
paragraph 2 that he was earning almost twice as much as younger employees is not accompanied
by a citation to the record. The statement in paragraph 3 that plaintiffs performance exceeded
defendant’s expectations is conclusory and is not accompanied by a citation to the record. The
portion of paragraph 6 that states that a 1996 incident with a co-worker is “far too remote to have
had an impact of Defendant’s decision to terminate Plaintiff” is conclusory. The statements in
paragraph 7 that plaintiff was terminated on the basis of his age, that the commissions were
implicitly based on age, and that plaintiff's age is directly responsible for plaintiff's higher
commission are conclusory, and are either unsupported by the citations to the record provided or
are unaccompanied by a citation to the record. Finally, the portion of paragraph 8 that states that
the remoteness in time between the creation of a document and plaintiff's discharge indicates that
defendant’s decision to terminate plaintiff was pretextual, is conclusory and is not accompanied

by a citation to the record. These portions of plaintiff's Statement of Additional Material Facts

' Defendant also challenges the portion of the response to paragraph 12 that states: “Mr.
Larimer, at no time claimed to have knowledge of any facts which established that Plaintiff had
guns and ammunition on company property” and the portion of the response to paragraph 15 that
disputes defendant’s use of the work “letter.” These responses, however, are not relevant to the
court’s inquiry.


statement...of any additional facts that require the denial of summary judgment, including
references to the affidavits, parts of the record, and other supporting materials relied upon.” LR
56.1(6)(3)(B). Where a party has not followed the local rules requiring a response to the moving
party’s statement of facts, supported by appropriate citations in the record, the moving party’s
facts remain uncontested. See, ¢.g., Brasic v. Heinemann’s Inc., 121 F.3d 281, 284 (7" Cir.
1997). A district court has the power to strike a response to a motion for summary judgment
when the non-moving party fails to comply with local rules regarding that response. Rosemary

B. on Behalf of Michael B. v. Board of Educ., 52 F.3d 156, 158-59 (7" Cir. 1995).

Defendant objects to portions of the following of plaintiff's responses to defendant’s
material facts: 11-17, 21, 27, 32, and 33. The response to paragraph 11 is not accompanied by
any citation to the record. The portions of the responses to paragraphs 12 through 16 that state
that the remoteness in time between the various events under discussion and plaintiffs discharge
show that the reasons for plaintiff's discharge were pretextual, are conclusory. The citation to
the record offered for the portion of the response to paragraph 17 that states, “Additionally, Mr.
Kohler indicated that this incident did not directly have an impact on Plaintiffs eventual
termination,” does not support that statement. The citation to the record offered for the portion
of the responses to paragraphs 21 and 27 that discuss the implicit relationship between plaintiff's
age and time with the company and his commission does not support those statements. The
portion of the response to paragraph 21 that states, “Had Plaintiff been younger and not started at
the time that he did, he would not have had such a high commission,” is conclusory and is not
accompanied by any citation to the record. The statement in response to paragraph 27 that

plaintiff's age is responsible for the size of his commission is not accompanied by a citation to


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

EASTERN DIVISION DOCKE TED

JAN 1 6 2002
DOMINIC MINERVINI,

Plaintiff,
01 C 0683
Vv.
Judge George W. Lindberg
SEVEN WORLDWIDE, INC.,

wee SESE UW

Defendant.
MEMORANDUM OPINION AND ORDER

Plaintiff Dominic Minervini claims that his employment was terminated by defendant
Seven Worldwide, Inc. because of his age, in violation of the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 et seq. Before the court are defendant’s motion to strike
portions of plaintiffs response to defendant’s statement of facts, and portions of plaintiff's
statement of facts; and defendant’s motion for summary judgment. For the reasons stated below,
defendant’s motion to strike is granted in part, and defendant’s motion for summary judgment is
denied.

I. Motion to Strike

At the outset, the court must evaluate defendant’s motion to strike portions of plaintiff's
response to defendant’s statement of facts, and portions of plaintiffs statement of facts. Under
Local Rule 56.1(b), a response to a motion for summary judgment must contain “a response to
each numbered paragraph in the moving party’s statement, including, in the case of any
disagreement, specific references to the affidavits, parts of the record, and other supporting

materials relied upon.” LR 56.1(b)(3)(A). In addition, the response must contain “a

VL


ORDERED: Defendant’s motion to strike portions of plaintiffs response to defendant’s
statement of facts, and portions of plaintiff's statement of facts, is granted in part. Defendant’s
motion for summary judgment is denied.

ENTER:

Gebrge We Ljndberg
Senior United States District Judge Z

DATED: JAN 1.4 2002