defensive manner.” Plaintiff disputes several of the negative comments on the review, as well as
the overall rating. Plaintiff contends that this was the first unsatisfactory review he received
while working at SBPT, and that Dow was unqualified to review his job performance. He also
alleges that Dow told him on several occasions, prior to the review, that he was innovating and
doing a good job.

On April 5, 2001, Dow sent plaintiff an e-mail following an apparent mix-up regarding
the testing of a new product. Dow wrote, in part, “Bill, this is the second example of how we
need to be talking more as a team (the first was the disconnect on the laser modules that you were
ordering) - you need marketing feedback, which is why I’m here.” Dow administered a second
review of plaintiff's job performance in July 2001. At the time of the review, plaintiff had not
presented reports to Dow or Schneider on the soft grip project or the laser arbor project.
According to defendant, both reports were originally earlier, deadlines were missed, and plaintiff
was ultimately given until August 3, 2001, to complete both projects. Plaintiff admits that he
missed deadlines on the two projects, but contends this was due in part to changes in his
engineering team, and that Dow and Schneider gave plaintiff conflicting or incomplete
statements of their expectations regarding reporting on the projects,

Plaintiff received a below expectations rating in four of the eight performance goals, a
fully satisfactory rating on the other four goals, and an overall below expectations rating on the
July 2001 review. Dow noted in the review that plaintiff needed to be more accountable for his
team’s actions, and that the current environment “creates no consequences for missing
deadlines.” Dow added that “Team is still in R&D mode vs. project mode.” Dow also repeated
her criticisms from the January 2001 review that plaintiff needs to be an “active manager,”
develop a more open dialog, explain his thoughts better, and respond appropriately to questions.
As a result of the July 2001 review, plaintiff was placed on an eight-week notice that there would

be zero tolerance of, (1) non-adherence to the IAD process and support documentation, and (2)



to cover one's tracks.” Grube v. Lau Industries, Inc., 257 F.3d 723, 730 (7th Cir.2001) (internal

quotations omitted).

It is uncontested that in January 2001 and July 2001, plaintiff received an overall rating of
below expectations on his performance reviews. Plaintiff argues, however, that defendant’s
justification for his poor reviews and termination is undermined by plaintiff’s thirteen-year history
of positive performance reviews that ended only after Dow became his supervisor, and only after he
was asked to perform engineering tasks that had not been part of his job responsibilities in many
years. Essentially, plaintiff contends that he was set up to fail by Schneider, who plaintiff alleges
caused him to be placed on the engineering projects and who heavily criticized plaintiffs engineering
work, and by Dow, who carried out Schneider’s plan.

A plaintiff may not, of course, avoid summary judgment merely by disagreeing with his

employer’s business decisions or by speculating about the defendant’s motive. Rand v. CF Industries.

Inc., 42 F. 3d 1139, 1145-46 (7" Cir. 1994). Where, however, the material facts specifically offered
by one party contradict the facts offered by the party moving for summary judgment, the motion must
be denied. Lujan v. Nat’] Wildlife Fed’n, 497 US. 871, 888 (1990). Here, plaintiff presents evidence
based on his personal knowledge and other material facts that a reasonable jury could find to be
pretext for age discrimination. A jury could infer that the statements allegedly made by Schneider
and Dow, regarding plaintiff being better “in former times” and Schneider “cleaning house,”
respectively, indicated age animus. Likewise, Schneider and Dow were involved in two sets of
personnel decisions in 2000 and early 2001 that, taken together, could support a jury finding of
pretext: (1) the demotion or placing on notice of at least two older employees (Kunz and
Mangialardi), and (2) the hiring or promotion of at least two substantially younger employees
(Griswald and Ellis). In addition, plaintiff claims that he was pressured by Dow to give Bujalski, an
older employee approximately plaintiff's age, a negative review. Although plaintiff admitted at his
deposition that the negative review might have been warranted, he still contends he was pressured by

Dow. Lastly, several material facts regarding plaintiff's job responsibilities before and after 2000,



made by Dow and/or Schneider in 2000 and 2001. Al Kunz (“Kunz”), age fifty five and a senior
project manager in marketing, received a favorable expectations review on May 25, 2000, from
Dow, but in June 2000, Dow gave Kunz a corrective action plan and Kunz was placed on notice.
Gregg Mangialardi (“Mangialardi”), age fifty one and a director of engineering, received an
overall rating of below expectations in a review of his job performance by Schneider in January
2001. Mangialardi was subsequently demoted to a Project Leader in April 2001. Leon Bujalski
(“Bujalski”), age sixty, was given a below expectations review by plaintiff, who was Bujalski’s
supervisor, in January 2001, and took early retirement in February 2001. Plaintiff claims he was
pressured by Dow to give Bujalski a negative review.

Two younger employees were hired and promoted by SBPT in 2000 and 2001. Scott
Griswold (“Griswold”), age twenty eight, was hired as a senior project engineer in January 2000,
and became a project leader six months later. Plaintiff contends this was a promotion, but
defendant argues it was a lateral move. Brian Ellis (“Ellis”), age forty one, was promoted in May
2001 to director of engineering. Plaintiff also alleges Steve Holzer, age thirty eight, was

promoted, but submits no evidence in support.

SUMMARY JUDGMENT STANDARD

A movant is entitled to summary judgment under Rule 56 when the moving papers and
affidavits show there is no genuine issue of material fact and the movant is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving
party has met its burden, the nonmoving party must go beyond the pleadings and set forth
specific facts showing there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Becker v.
Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (vih Cir. 1990). The court considers the record
as a whole and draws all reasonable inferences in the light most favorable to the party opposing

the motion. See Fisher y. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir.

6



missing schedules.’ The notice was signed by Dow and Schneider. Plaintiff disputes the
accuracy of several of the individual ratings and comments in the review, as well as the
calculation of the overall rating.

After his July 2001 review, plaintiff was instructed to complete three deliverable reports
within the next few weeks. Plaintiff claims that Dow and Schneider failed to provide him with
necessary information regarding the projects for at least a week, which delayed his work.
Plaintiff submitted reports to Dow and Schneider on the soft grip and laser arbor projects in late
July or early August. Defendant argues, based on reviews of the projects by Schneider and two
other engineers employed by defendant, that the proposals contained several erroneous
engineering assumptions, “had no value,” and were “awful.” Plaintiff was asked to give an oral
presentation of at least one of the proposals to Schneider, which defendant alleges was equally
unsatisfactory. Plaintiff contends that the proposals were sound, and submits the affidavit of
another engineer, Barry Jacobs, in support of his claim.

Plaintiff claims that Dow and Schneider made comments to him in July or August 2001
that he perceived to be motivated by age animus. Plaintiff alleges that in July 2001, after
plaintiff’s report on his projects was poorly received by Schneider, Dow remarked to plaintiff
that she was surprised at Schneider’s reaction and that if she had known they wanted her to
“clean house” she would not have taken the position. Plaintiff also claims he confronted
Schneider about his perceived unfair treatment and his negative review, and Schneider responded
that plaintiff was “better in former times.” On August 15, 2001, Dow and Schneider informed
plaintiff that he was terminated. After plaintiff? 8 termination, Dow oversaw product
development and managed plaintiff's former subordinates in the advanced development
department.

Plaintiff names several older employees who suffered adverse employment decisions

‘Neither party makes it clear, but it appears the “IAD process” was the version of the
NPDP implemented in the advanced development department.


must produce evidence that: “(1) he was in the protected age group; (2) he was performing
according to his employer’s legitimate expectations; (3) he suffered an adverse employment
action; and (4) similarly situated, substantially younger employees were treated more favorably.”

Biolchini v. General Elec. Co., 167 F.3d 1151, 1153-54 (7th Cir. 1999).>

Ifa plaintiff succeeds in establishing a prima facie case, he creates a rebuttable
presumption of discrimination, and the burden shifts to the employer to articulate a legitimate
nondiscriminatory reason for the employment decision. If the employer is successful, the
presumption of discrimination dissolves, and the burden shifts back to the employee to prove that
the employer’s proffered reasons are a pretext for discrimination. See Anderson v. Baxter
Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir. 1994). At all times, the plaintiff bears the
ultimate burden of persuading the trier of fact that the defendant intentionally discriminated
against him. See Hughes v. Brown, 20 F.3d 745, 747 (7th Cir. 1994).

Plaintiff alleges that he was the victim of age discrimination, and that the negative
performance reviews and his termination were pretextual. Defendant does not challenge plaintiff’s

prima facie case of age discrimination, but proffers a legitimate, non-discriminatory reason for

plaintiff's termination: poor job performance. Defendant argues that there is no genuine issue of
triable fact as to plaintiff's claim of pretext. A plaintiff can establish pretext by showing either that

a discriminatory reason more likely motivated the employer or that the employer’s proffered

explanation is unworthy of credence. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1039 (7th Cir.
1993). Plaintiff must demonstrate that the explanation is dishonest, rather than merely an error.
Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1006 (7" Cir. 2002) (citing Kulumani v. Blue
Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7" Cir, 2000)). “A pretext for discrimination means

more than an unusual act; it means something worse than a business error; pretext means deceit used

>Despite plaintiff's attempts to style his claim as a reduction-in-force (“RIF”) claim, and
plaintiff's inclusion of numerous citations to RIF precedent in its briefs, the instant case is not an
RIF or “mini-RIF” claim. Defendant does not argue for summary judgment on those terms, and
there is no evidence that plaintiff's position was permanently eliminated by SBPT.

8



Minute Oiler Fern (097

United States District Court, Northern District of Illinois

or Magistrate Judge than Assigned Judge

[ Name of Assigned Judge Robert W. Gettleman Sitting Judge if Other

CASE NUMBER 03 C 446 DATE Sept. 14, 2004

aie William J. Ryan v___ Robert Bosch Corp., et al

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

MOTION:

DOJune 14, 2004CKE NTRY;

( ir Filed motion of [ use listing in “Motion” box above.]

(2) im} Brief in support of motion due

3) Oo Answer brief to motion due____-_ Reply to answer brief due.

(4) QO Hearing

(5) @ Status hearing held and continued to 9/21/04, at 9:00 a.m.

(6) oa Pretrial conference[heid/continued to] [set for/re-set for]on___setfor__——sat__.
(7) i) Trial{set for/re-sct for} on at.

(8) im {BenclvJury tial] [Hearing] held/continued to aat.

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

COFRCP4(m) O General Rule21 OFRCP41(a)(1) OO FRCP41(a)(2).

(lo) {Other docket entry] Memorandum opinion and order entered. Defendants’
motion for summary judgment is denied as to count I and granted as to count IT.

(1) @ (For further detail see order attached to the original minute order.]

X_ | No notices required, advised in open court,

No notices required

number of notices,

Notices mailed by judge's stall

Notified counsel by telephone.

date dockete
Devketing to mail notices.
Mail AQ 480 form docketing depuNy initials q
Copy to judyemagistrate judge. ] sf
courtroom date mailed novice
. . STEP Pb te BAI
Gps deputy’s CS3schd Ly dS 82
initials

Date/time received in;
centril. Clerk's Office 4 railing deputy initials



has issued a final order on a complaint.” Talley v. Washington Inventory Service, 37 F.3d 310,
312-13 (7" Cir. 1994)

Plaintiff filed charges with the Illinois Department of Human Rights on or about February
27, 2002, but plaintiff presents no evidence that a final order has been issued. Therefore, the court
grants defendant’s motion for summary judgment on Count II of the complaint for, at a minimum,

his failure to exhaust the administrative remedies required by the IHRA.

CONCLUSION
For the reasons stated herein, defendant’s motion for summary judgment is denied as to

Count I, and granted as to Count IL.

ENTER: September 14, 2004

Robert W. Geitleman
United States District Judge

11



the explanations and directions he received from Dow and Schneider, his conduct as a project leader,
and the quality and timeliness of his work in 2000 and 2001, remain in dispute and are questions for
the factfinder.

When an employee offers specific evidence from which the finder of fact may reasonably
infer that the proffered reasons do not represent the ‘truth, the case then turns on the credibility of
the witnesses. Collier v. Budd Co., 66 F.3d 886 (7" Cir. 1995). “This credibility judgment is best
left to the finder of fact.” Id., citing Courtney v. Biosound, Inc., 42 F. 3d 414, 423-24 (7" Cir.
1994). As the Seventh Circuit has said many times, summary judgment cannot be used to resolve
swearing contests between litigants. Payne v. Pauley, 337 F. 3d 767 (7" Cir. 2003) (citations
omitted). In the instant case, plaintiff presents the court with more than “grand conspiracy
theories ” and questions about defendant’s business judgement, contrary to defendant’s
characterization. Plaintiff thus casts enough doubt on defendant’s tendered reasons for plaintiffs
negative reviews and his termination to make summary judgment inappropriate. Taken together,
evidence offered by plaintiff, albeit it a bit thin, demonstrates genuine issues of material fact as to
whether the negative reviews of plaintiff and the proffered reason for his termination were
pretexts for age discrimination. Accordingly, the court denies defendant's motion for summary

judgment on Count I of the complaint.

Il. FHRA Claim (Count Il) :

Simply stated, the court lacks subject matter jurisdiction over plaintiff's claim under the
Illinois Human Rights Act (“IHRA”) because the statute preempts judicial review until a final
administrative order is entered. The IHRA states, “Except as otherwise provided by law, no court
of this state shall have jurisdiction over the subject of an alleged civil rights violation.” 775
LL.C.S. 5/8-11(C). The Seventh Circuit has held that “in light of the Illinois Human Rights Act,
courts have no jurisdiction to hear independent actions for alleged human rights violations.

Rather, judicial review is available only under the [THRA] after the Human Rights Commission

10



1992).
A genuine issue of material fact exists when “the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc, 477 U.S. 242,

248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). This standard is applied
with added rigor in employment discrimination cases, where issues of intent and credibility often
dominate. See Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993). However,
the nonmoving party “must do more than simply show that there is some metaphysical doubt as

to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). “The mere existence of a scintilla of evidence in support of the [nonmoving party’s]
position will be insufficient, there must be evidence on which the jury could reasonably find for

the [nonmoving party].” Anderson, 477 U.S. at 252.

DISCUSSION
I. ADEA Claim (Count I)

To state a claim for intentional discrimination under the ADEA, a plaintiff has two
options: he may satisfy his burden of proof by offering direct evidence of discriminatory intent;
or he may demonstrate such intent indirectly by following the McDonnell Douglas
burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988) (extending the McDonnell Douglas test
to ADEA cases). Because plaintiff does not present any direct evidence of discrimination, the
court assumes he is relying on the McDonnell Douglas formula. Under this framework, the
plaintiff must first establish a prima facie case of discrimination by a preponderance of the
evidence. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 505 (1993).

The ADEA makes it unlawful “to fail or Tefuse to hire or to discharge any individual or
otherwise discriminate against any individual . . .. because of such individual’s age.” 29 U.S.C. §

623(a)(1). To establish a prima facie case of age discrimination under the ADEA, a plaintiff

7



2000 Ann Dow (“Dow”) was named director of advanced development. Dow was in her mid-
thirties at the time, and has a background in marketing, not engineering. Plaintiff reported to
Dow, with dotted-line responsibility to Schneider. Dow and a team of SBPT employees
developed an abbreviated version of the general NPDP protocol for implementation specifically
in the Advanced Development department.

From early in his employment with SBPT plaintiff worked primarily in an IT capacity,
managing digital images and other CAD data for the advanced development department, rather
than focusing on engineering projects. Some time in early 2001, plaintiff was given
responsibility for at least two engineering projects related to the development of two new
products, (1) the soft grip, and (2) the laser arbor. Plaintiff admits that he had not done the work
of a project engineer for twelve or thirteen years, and was more familiar with IT work. He claims
that defendant made the projects more difficult by removing engineers from his team.

According to plaintiff, the changes in personnel and the implementation of the NPDP
caused confusion regarding job responsibilities and the reporting structure, created tension within
the advanced development department, and interfered with his efforts to complete his work. To
this end, in addition to his deposition, plaintiff submits the affidavit of Barry Jacobs (“Jacobs”),
an engineer who worked in the advanced development department in 2000 and 2001 as a member

of plaintiffs project team. Defendant responds that any confusion was caused by plaintiff
himself, and that plaintiff resisted the implementation of the NPDP and did not adjust to the
changes in the advanced development department. .

In January 2001 plaintiffs annual review was administered by Dow for the first time, as
she had been his supervisor for less than a year. Plaintiff received a below expectations rating in
two of the six performance goals, and an overall below expectations rating. Dow wrote in the
section of the review titled “Associate Development Needs/Plan” that plaintiff needed to be a
more “active manager,” “develop a more open dialog and explain his thoughts better to avoid

misunderstanding of his intentions,” and “respond appropriately to questions and not ina



FACTS’

SBPT designs, manufactures, and markets high-quality power tools. Plaintiff was hired
by defendant as an engineer in May 1988, and held a number of positions with defendant until his
termination on August 15, 2001. Plaintiff received several promotions during his employment
with defendant, and was offered a bonus in or about December 1991 to continue his employment
with defendant. From 1998 through the time of his termination, plaintiff worked at the SBPT
Chicago headquarters as a manager of advanced development and computer aided design
(“CAD”). In this position, plaintiff was responsible for overseeing new product designs and
managing the CAD drafting process using an engineering software system.

Plaintiff received an overall performance rating of commendable on his on job
performance reviews in January 1997 and January 1998, which was the second-highest of five
possible ratings at that time. In January 1999, plaintiff received an overall rating of fully
satisfactory, which was the middle of five possible ratings at that time.*

In late 1999, SBPT adopted the “New Product Development Process” (“NPDP”), which
aimed to improve the new product development process by integrating the marketing and
engineering groups within the company. Under the NPDP the marketing department assumes a
larger role in the development of new products by researching the needs and preferences of
power tool consumers and users before products are designed. Marketing then shares its findings
with the engineering department, which evaluates whether the new tools and features can be
developed cost effectively by SBPT. 7

In January 2000, Egbert Schneider (“Schneider”), a vice president of engineering, was
transferred to SBPT’s Chicago headquarters to oversee the advanced development department in

which plaintiff worked. Schneider was thirty nine years old at the time of his transfer. In June

Unless otherwise noted, the following facts, taken from the parties’ L. R. 56.1
Statements and attached exhibits, are not in dispute.

5Neither party submitted a performance féview of plaintiff from 2000.

2



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIAM J. RYAN,
Plaintiff,

03 C 0446
Judge Robert W. Gettleman

Vv.

ROBERT BOSCH CORP., ROBERT
BOSCH POWER TOOL CORP.,

AND S-B POWER TOOL CORP. d/b/a
S-B POWER TOOL COMPANY

DOCKETED

SEP 2 0 2004

Se

Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff William J. Ryan filed the instant lawsuit against his former employer, S-B Power

Tool Company (“SBPT”), alleging that SBPT discharged him in violation of the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 (Count J) and the Mlinois
Human Rights Act (“IHRA”), 775 LL.C.S § 5/1-101 (Count Il).' Plaintiff was fifty two years old
at the time he was terminated. Defendant has moved for summary judgment pursuant to Fed. R.
Civ. P. 56, arguing that plaintiff has failed to rebut defendant’s asserted non-discriminatory
reason for terminating plaintiff's employment. Defendant also argues that the court lacks subject
matter jurisdiction over the IHRA claim. For the reasons stated herein, the court denies

defendant’s motion as to Count I, and grants defendant’s motion as to Count IL

‘Apparently, according to defendant’s disclosure statement, SBPT has merged into
Robert Bosch Tool Corp., although the parties in their summary judgment pleadings to refer to

SBPT as plaintiff's former employer.