CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment [doc. no. 15-1) is
granted, and Plaintiff's Motion for Leave to File Surreply [doc. no. 29-1] is denied. This case is

hereby terminated.

so ORDERED. ENTERED: ed oo Y

HON. RONALD A. GU:
United States Judge

13



Plaintiff alleges that his termination was based on his age. (Pl.’s LR 56,1(b)(3)(A) J 21.)
Plaintiff also claims that on February 2, 2002, Gouedard told Kinsella, Jackson’s immediate
superior, that Gouedard “had serious concerns whether older employees can keep pace with the
industry,” and that, “in the future,” Kinsella “should pursue young, hungry people; airline people
in their mid-thirties.”* (Pl.’s LR 56.1 (b)(3)(B) § 24.)

After Plaintiff's termination, Gouedard rehired Gary Burtzlaff, a former Worldwide
employee who was 55 years old at the time, to take over Jackson’s former responsibilities as
well as other duties, (Def.’s LR 56.1(a)(3) 4¥f 24-25; Pl.’s LR 56.1(b)(3)(A) $f 24, 26.) Two
months after Burtzlaff’s rehire, he was promoted to Senior Vice President in light of his
exemplary performance of Jackson’s former duties, (Def.’s LR 56.1(a)(3) 27.) After his
promotion, Burtzlaff was responsible for hiring someone to take over the portion of his duties
that Plaintiff previously performed. (Id. 29.) Burtzlaff chose Tricia Keamey, born on August
30, 1969, as his replacement, and Worldwide appointed her to the position of Regional Vice
President. (Jd. $9 30-31.)

In September 2002, Jackson filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) alleging that his termination was based on his age. (Id. § 42.) On
January 31, 2003, the EEOC dismissed Jackson’s charge with a finding of no cause, and he was
issued a right to sue fetter. dd. 9§ 44-45.) On March 31, 2003, Jackson filed the present
complaint against Worldwide in the instant case alleging age and sex discrimination in his

termination. (/d. 446.)

Armen mene nn

* Gouedard denies he made this statement to Kinsella, (Def.’s Ex. K, Gouedard Aff. 92),
but on summary judgment, the Court must view all facts in the light most favorable to the
plaintiff. See Baron v. City of Highland Park, 195 F.3d 333, 337 (7th Cir. 1999),

4



Fourth, even if Gouedard did not communicate his concerns about Jackson to Kinsella,® an
employer’s arbitrary and subjective decisionmaking process is not by itself enough to prove age
discrimination. See Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1031-32 (7th Cir. 1998).
Finally, as will be discussed in more detail below, the fact that Jackson was replaced by someone
three years older is circumstantial evidence supporting the contrary inference, that Gouedard was
not biased against older workers.

The cases cited by Jackson are distinguishable because those plaintiffs offered
circumstantial evidence of discriminatory animus not present in this case and/or showed a link
between the comments and the adverse employment action. See Shager v. Upjohn Co., 913 F.2d
398, 401-02 (7th Cir. 1990) (finding summary judgment inappropriate where the plaintiff was
replaced by a younger worker for reasons that were demonstrably untrue); McNeil v. Economics
Lab., Inc., 800 F.2d.111, 115 & n.3 (7th Cir. 1986), overruled on other grounds by Coston v.
Plitt Theatres, Inc., 860 F.2d 834, 835-36 (7th Cir. 1988) (affirming judgment for plaintiff after
bench trial where plaintiff presented substantial direct evidence of discrimination, including
employer’s express intention to eliminate older salesmen and replace them with “bright young
people”); Notaro v. Digital Equipment Corp., No. 93 C 7198, 1994 WL 457231, at *4, 6 (N.D.
Ill, Aug. 19, 1994) (holding that a decisionmaker’s direct statement to plaintiff that he
“represent[s] the. old DEC” was sufficiently ambiguous to defeat summary judgment). The

Court concludes that Plaintiff has not shown age discrimination using the direct method of proof.

© bynitaatene tse ote

® The parties dispute whether or not Gouedard did in fact inform Kinsella about his
perceived problems with Jackson’s performance, but this evidentiary dispute must be resolved in
Plaintiff's favor for the purposes of summary judgment.



A plaintiff may establish age discrimination under either the direct method, by presenting
“direct or circumstantial evidence that age was the determining factor” in the termination or the
“indirect, burden-shifting method of proof for Title VII cases originally set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).” Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.
1988). Jackson claims that he has established age discrimination under both the direct and

indirect methods of proof.

IL. Direct Method

“To prove age discrimination using direct evidence, an ADEA plaintiff must establish
‘that he would not have been discharged “but for” his employer’s motive to discriminate against
him because of his age.” Mills v. First Fed. Sav. & Loan Ass’n, 83 F.3d 833, 840 (7th Cir.
1996) (quoting Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th Cir. 1991)).
Age discrimination under the direct method of proof may be established through “evidence that
proves discrimination without the need for inference or presumption.” Troupe v. May Dep't
Stores Co., 20 F.3d 734, 736 (7th Cir. 1994); see also Gusewelle v. City of Wood River, 374 F.3d
569, 574 (7th Cir, 2004) (quoting Rogers v. City of Chi., 320 F.3d 748, 753 (7th Cir. 2003))
(“Direct evidence essentially requires an admission by the decision-maker that his actions were
based upon the prohibited animus.””).

Discriminatory motive may be shown through circumstantial evidence, including
evidence of “suspicious timing, ambiguous statements oral or written, behavior toward or
comments directed at other employees in the protected group;” evidence that employees who

were similarly situated to the plaintiff but not members of the protected class received


ISC' ION

Pursuant to..Rule 56(c), the Court may grant summary judgment if the pleadings,
depositions, answers to interrogatories, affidavits, and admissions on file “show that there is no
geriuine issue of material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). The Court must view “the facts, and all reasonable inferences
drawn therefrom, in a light most favorable to the nonmoving party.” Baron v. City of Highland
Park, 195 F.3d 333, 337 (7th Cir. 1999). “Ifno reasonable jury could find for the party opposing
the motion, it. must be granted.” Hedberg v. Ind. Bell Tel. Co,, Inc. 47 F.3d 928, 931 (7th Cir.
1995). On summary judgment, the Court must not weigh the evidence submitted by the parties
or determine the truth of asserted matters. Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986).

The ADEA makes it unlawful “to fail to or refuse 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). An ADEA plaintiff must show that age was a determining factor in the
employer’s decision to terminate the plaintiff's employment. Adreani v. First Colonial
Bankshares Corp., 154 F.3d 389, 393 (7th Cir. 1998) (“Although age need not be the sole reason
for the discharge, the claimant must show that, but for his employer’s motive to discriminate
against him on the basis of his age, he would not have been discharged.”). The burden is on the
plaintiff to prove intentional discrimination by a preponderance of the evidence. Sy. Mary’s

Honor Ctr. y. Hicks, 509 U.S. 502, 506 (1993).



(affirming grant of summary judgment and stating that “[t]he less direct the connection between
the comment and the employment action — that is, if the comment was not made in temporal
proximity to the employment action, or if the comment was not made in reference to that action
—the less evidentiary value the comment will have.”), Second, Jackson has presented no
evidence that the alleged statements were linked to Gouedard’s decision to terminate Jackson’s
employment or that they referred to Jackson at all. “{Bjefore seemingly stray workplace remarks
will qualify as direct evidence of discrimination, the plaintiff must show that the remarks ‘were
related to the employment decision in question.” Fuka v. Thomson Consumer Elecs., 82 F.3d
1397, 1404 (7th Cir. 1996) (“If such proof is lacking, the remarks alone will not give rise to an
inference of discrimination even when uttered by the ultimate decisionmaker.”) (citation
omitted); see also Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1005 n.6 (7th Cir. 2000)
(explaining that an allegedly discriminatory comment was not causally related to the decision
making process when the statement referred to future compensation decisions).

Third, the comments themselves do not raise an inference that Gouedard harbored a
motive to discriminate against employees based on age: “While making any distinction between
a person’s mindset and his or her age may present a close question, such a potential distinction
certainly reduces the likelihood that discri mination, rather than competitive desire, was the
motivating influence for [the plaintiff's] termination.” Schuster, 327 F.3d at 575 (affirming
summary judgment.and noting that comments that younger employees are more energetic and

willing to work harder “may have less to do with age and more to do with business climate”).


Minute Order Form (06/97)

SM

United States District Court, Northern District of Ilinois

““CVFRCP4(m) Ci Local Rule 41.1 C1 FRCP41(a)(1) CD FRCP41(a)(2).

moot.

(11) ff [For further detail see order attached to the original minute order.]

Name fasignet Jute | Ronald A. Guzman —_| Siting Jue rote

CASE NUMBER 03 C 1940 DATE 9/29/2004
CASE GEORGE JACKSON vs. WORLDWIDE FLIGHT SERVICES, INC.
TITLE

[lin the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented,

DOCKETENTRY: .

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

(2) QO Brief in support of motion due

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

(4) oO Ruling/Hearingon___setfor____at

(5) O Status hearing[held/continued to] [set for/re-set for] on setfor_ sat.

(6) a Pretrial conference{held/continued to] [set for/re-set for]}on___setfor__——sat__—.

(7) Oo Trial[set for/re-set for]on___at

(8) im {Bench/Jury trial] [Hearing] held/continued to__at

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

ao) =o [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Defendant’s Motion
for Summary Judgment [doc. no. 15-1] is granted, and Plaintiff's Motion for Leave to File Surreply [doc.
no. 29-1] is denied. This case is hereby terminated. Any pending motions or schedules are stricken as

No notices required, advised in open court,

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone,

wv | Docketing to mail notices,
vw | Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
cG deputy's
initials

—
Date/time received in. = | -
central-Clerk's Office” mailing deputy initials



Under the fourth prong of the McDonnell Douglas analysis in ADEA claims, “a plaintiff
must show that he was replaced by someone ‘substantially younger,’ although not necessarily
outside the protected class.” Richter, 142 F.3d at 1028 (quoting O’Connor v. Consol. Coin
Caterers Corp., 517 US, 308, 313 (1996). “‘In the age-discrimination context, [an inference
that an employment decision was based on a discriminatory criterion] can not be drawn from the

.

replacement of one..worker with another worker insignificantly younger.’” Jd. (alteration in
original).

The undisputed evidence establishes that Jackson was replaced by Gary Burtzlaff, who
was three years older than Jackson. Jackson maintains that Burtzlaff’s hiring was “suspicious”
because (1) when. Burtzlaff was rehired, he performed other duties in addition to those
previously performed by Plaintiff, (2) Burtzlaff was promoted for exemplary performance after
only two months; and (3) Burtzlaff was promoted over four other Regional Vice Presidents who
had been at Worldwide before Burtzlaff was rehired. (P1.’s Opp’n at 13.) Plaintiff contends that
he should be allowed to argue that Burtzlaff was not in fact hired to replace him but instead was
hired to fill in until_an actual replacement, i.e., thirty year-old Tricia Keamey, was found. (/d.)

Plaintiff, however, offers no evidence, other than his own speculation, that the company
hired Burtzlaff with the intention of hiring a younger worker to replace Jackson. See Denisi v.
Dominick’s Finer Foods, Inc., 99 F.3d 860, 866 (7th Cir. 1996) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)) (“In the face of a documented motion for
summary judgment, a party cannot rely on a ‘metaphysical doubt.””), There is no evidence in

the record by which a jury could infer that, at the time Burtzlaff was rehired, the company did

11



SoS esl Seemed

Il. Indirect Method

Jackson next attempts to prove age discrimination under the McDonnell Douglas indirect
method of proof. Under this method, a plaintiff must initially establish a prima facie case of age
discrimination by a preponderance of the evidence. Wilson v. AM Gen. Corp., 167 F.3d 1114,
1119 (7th Cir. 1999). Jackson may establish a prima facie case of age discrimination by
showing that: (1) he.is a member of a protected class of persons over forty years of age; (2) he
performed his job satisfactorily to Worldwide’s legitimate expectations; (3) he suffered an
adverse employment action; and (4) that he was replaced by a substantially younger individual.
See Fuka, 82 F.3d at 1404; see also Schuster, 327 F.3d at 575 (quoting Huff v. UARCO, Inc., 122
F.3d 374, 385 (7th Cir. 1997)) (“When a plaintiff uses the indirect method of proof, no one
piece of evidence need support a finding of age discrimination, but rather the court must take the
facts as a whole.””).

If Jackson sticcessfully demonstrates a prima facie claim of age discrimination, the
burden “shifts to the employer to articulate a nondiscriminatory reason for discharging the
plaintiff then. shifts back to the plaintiff to show that the employer’s proffered explanation is
pretextual.” Adreani, 154 F.3d at 394. However, at all times, “the ultimate burden remains with
the plaintiff-employee to persuade the trier of fact that the defendant-employer intentionally
discriminated against him based upon his age.” Id. at 393-94, Worldwide concedes that Jackson
has established the first and third elements of a prima facie case, as Jackson is over forty years of
age and he was terminated, but the parties dispute whether Jackson was performing his job

satisfactorily or was treated differently than a similarly situated younger employee.

10



systematically better treatment; or evidence that the plaintiff was qualified for the job but was
replaced by someone outside the protected class, and that the employer’s reason for the treatment
is mere pretext for discrimination. See Troupe, 20 F.3d at 736. Such evidence must be “both
made by a decisionmaker and related to the employment decision at issue,” Stopka v. Alliance of
Am. Insurers, 141 F.3d 681, 688 (7th Cir. 1998), and it must be contemporaneous with the
termination or causally related to the decision making process, see Geier v. Medtronic Inc., 99
F.3d 238, 242 (7th Cir. 1996). See also Gusewelle, 374 F.3d at 574 (quoting Rogers, 320 F.3d at
753) (“Circumstantial evidence must be sufficient to create a ‘convincing mosaic’ that ‘allows a
jury to infer intentional discrimination by the decision-maker.’”).

Jackson offers, as direct evidence of discriminatory intent Gouedard’s alleged statements
to Kinsella that Gouedard had “serious concerns whether older employees can keep pace with
the industry,” and that, “in the future,” Kinsella was to “pursue young, hungry people; airline
people in their mid-thirties.” (PI.’s LR 56.1(6)(3)(B) J 24.) Jackson also argues that Gouedard
neither informed Jackson or Kinsella that there were performance problems nor consulted with
Kinsella prior to the termination decision. The Court finds that Gouedard’s statements, when
viewed in combination with the other circumstantial evidence in the record, are not sufficient to
allow Plaintiff's direct claim to withstand summary judgment.

First, the statements were made more than two months before Jackson’s termination and
therefore were “not made contemporaneously to the adverse employment action as required by
our case law.” See Markel v. Bd. of Regents of Univ. of Wis. Sys., 276 F.3d 906, 910 (7th Cir.
2002) (holding that statements made less than two months before the adverse action were not

contemporaneous); see also Schuster v. Lucent Techs., Inc., 327 F.3d 569, 575 (7th Cir. 2003)


—

of overload luggage from Royal Jordanian airlines in the El Al Airline’s security warehouse
space. (Id § 14.) Gouedard states that the information obtained during this visit helped him to

understand why Worldwide had lost business in the previous few months. Ud. 417.) In

= cose ,
Gouedard’s judgment, the Chicago station was badly managed, and he believed a change was

needed. (id. q 19.) Later, in April 2002, Gouedard confirmed that Jackson had executed a lease

for the Chicago location that exceeded his authorized limits. (/d. { 21.)

Jackson’s employment was involuntarily terminated by Gouedard on April 12, 2002,
when Jackson was 52 years old. (P1.’s LR 56.1(b)(3)(B) J 4.) A letter dated April 11, 2002 from
Gouedard to Jackson stated that:

In..view of recent events, the Company, including its senior
management, has lost confidence in your ability to be an effective
member of management. Specifically, as a result of recent .
investigations, the company uncovered the following issues. You
executed a $2,500,000 lease agreement with Air France that
exceeded your authorized limits[.] You made agreements with
Royal Jordanian that allowed them to warehouse parcels and
luggage at our facility free of charge, which is contrary to all
sound business practices[.] Your actions as cited above are
unacceptable and in violation of Worldwide Flight Services Rules
and Regulations.*

(PI.’s Ex. C, 4/11/02 Letter from J.-F. Gouedard to G. Jackson.)

‘ Plaintiff explains that he executed the lease with the express authorization of his direct
insella, and it was Kinsella’s decision to enter the lease. (Pl.’s LR 56.1(6)(3)(B) {4
: Furthermore, Kinsella had sufficient authority to execute the lease. (fd. {{] 7-8.) Plaintiff
also states, that it is a. common practice in the industry to store overload luggage as a courtesy to
airline customers in certain circumstances and that the amount of Royal Jordanian bags stored
was economically insignificant. (/d. J] 12, 14, 19.) Worldwide does not dispute Plaintiff's
explanations but objects on the basis of relevance. The Court finds that these facts, though
relevant, carry little weight as they do not directly impact, even if taken as true, upon Gouedard’s
state of mind at the time he terminated plaintiff.



on January 1, 2001. (/d 47.) Worldwide is in the business of receiving and preparing bulk
cargo. from airlines and for transportation on airplanes. (P1.’s LR 56.1(b)(3)(B) { 1.) Jackson
held the esition f, Regional Vice President and had management responsibility for twelve
different locations including Worldwide’s Chicago, Illinois facility. (Def.’s LR 56.1(a)(3) 49 8-
9; Pl.’s LR 56.1(b)(3)(B) 3.) During the year before his termination, Jackson reported directly
to Jeff Kinsella, Executive Vice President of Operations in North America. (Pl.’s LR
56.1(b)(3)(B) { 2.)

Worldwide éfiiployed thirteen Vice Presidents in the United States in April 2002, nine of
whom (69%) were age 40 or older. (Def.’s LR 56.1(a)(3) ff] 32-33.) In addition, 45% of all
management personnel at Worldwide were age 40 or older as of April 2002. (Jd { 35.)
Currently, Worldwide employs fourteen Vice Presidents in the United States, ten of whom
(71%) are age 40 or older, and 51% of all management personnel are age 40 or older. (Jd. 4 37-
38, 40.)

“In March 2002, Worldwide’s President and CEO Jean-Francois Gouedard visited
Worldwide’s Chicago O’Hare station. (/d. § 10.) Gouedard met with employees, customers, and
non-customer airline representatives, and according to Gouedard, some of them complained of
Worldwide’s. services, safety, security, unsafe practices, and lack of “management

reactiveness.”® (Id. 11-13, 15.) In addition, Gouedard leamed about the unauthorized storage

. 3 Plaintiff objects to paragraphs 12 through 19 of Defendant’s L.R. 56.1 Statement of
Facts on the basis of inadmissible hearsay, claiming that statements made by other persons to
I ed to prove the truth of the matters (i.¢., “lack of management
| therein. However, the third-party statements were used by Gouedard in
forming his impressions during a decision-making process and thus are not hearsay. See Stewart
y. Henderson, 207 F.3d 374, 377 (7th Cir. 2000). Accordingly, paragraphs 12 through 19 are
admissible.



_IN. THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

ve EASTERN DIVISION .

GEORGE JACKSON, )
)
Plaintiff, )

) Judge Ronald A. Guzman
Vv. )

) 03 C 1940

WORLDWIDE FLIGHT SERVICES, INC., )
)
Defendant. )
)

__... MEMORANDUM OPINION AND ORDER

“Plaintiff George Jackson has sued defendant Worldwide Flight Services, Inc.
(“Worldwide”) alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. §
621 et seq. (“ADEA”).' Before the Court is Worldwide’s motion for summary judgment
pursuant to Federal Rule Civil Procedure (“Rule”) 56.2 For the reasons set forth below,

Worldwide’s motion for summary judgment is granted.

FACTS
Unless otherwise noted, the following facts are undisputed or are deemed admitted
pursuant to Local Rule 56.1, which this Court strictly enforces. Jackson was born on August 23,
1949, (Def.’s LR 56.1(a)(3) § 3.) He was hired by Miami Aircraft Services (“MAS”) on

February 19, 1996 and subsequently worked for Worldwide after MAS merged into Worldwide

aintiff’s complaint also alleged sex discrimination in violation of Title VII of the Civil
F § 20006¢ et seg. However, Plaintiff does not contest dismissal of the sex
discrimination claim. (P1.’s Mem. Opp’n Def.’s Mot. Summ. J. (“Pl.’s Opp’n”) at 1 n.1.)

? Also pending is Plaintiff's motion for leave to file a surreply, which claims that
Defendant’s reply brief contained new factual allegations and case law citations. The Court
finds that Defendant’s reply brief contained only reasonable responses to arguments raised in
Plaintiff's opposition brief and therefore denies Plaintiffs motion.



undisputed evidence that Burtzlaff capably handled Plaintiff's former duties as well as additional
responsibilities, it is difficult to comprehend how a reasonable jury could infer that Burtzlaff’s
promotion was “suspicious.” Similarly, the fact that Burtzlaff was ultimately promoted out of
Plaintiff's former position over employees who had allegedly been at Worldwide longer does not
raise an inference that the promotion was based on anything other than Burtzlaff’s excellent
performance.

Finally, even if Burtzlaff was hired to fill in temporarily until a replacement was found,
the undisputed evidence in the record demonstrates that Kearney was chosen solely by Burtzlaff,
not Gouedard, who was the decisionmaker responsible for Jackson’s termination. Thus, even if
Plaintiff could show. that Burtzlaff harbored a discriminatory motive in hiring Kearney, that
would not allow an inference that Gouedard discriminated based on age when he terminated
Jackson. — Moreover, other than Kearney, Jackson has not given examples of any younger
employees not in the protected class who were treated more favorably than he was.

Because Jackson has failed to point to evidence that he was treated differently than
similarly situated employees, he has not established a prima facie case of discrimination, and the
Court need not. address the parties’ arguments regarding whether he was performing
satisfactorily or whether the reasons for his discharge were pretextual. See Rogers, 320 F.3d at
755-56; see also Peele v. Country Mut. Ins. Co,, 288 F.3d 319, 330 (7th Cir. 2002) (“If a district
court determines that a plaintiff has failed to identify a similarly situated co-worker outside of
[his] protected. class, or that the co-worker identified by the plaintiff, while similarly situated,
was not treated in a more favorable manner, it need not address any of the underlying allegations

of disparate treatment.”).

12