legitimate non-discriminatory reason for the adverse employment action. Horwitz v.
Board of Educ. of Avoca School Dist. No. 37, 260 F.3d 602, 614 (7" Cir. 2001). If
the defendant produces such a reason, the burden shifts back to the plaintiff to show

that the proffered reason was merely a pretext. Id.

In Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7° Cir.
2002) the Seventh Circuit has identified the elements for a retaliation claim brought
under Title VII of the Civil Rights Act of 1964 (“Title VII”). 42 U.S.C. § 20006¢ et
seq. Although the courts treat ADEA and Title VII claims in a similar fashion, see
e.g. Hayden y. LA-Z-Boy Chair Co., 838 F.Supp. 384, 389 (N.D. Ill. 1992), the
Seventh Circuit has declined to alter the prima facie elements for a retaliation claim
in several ADEA cases decided since Stone. Franzoni, 300 F.3d at 772; Horwitz,
260 F.3d at 614. Thus, in order to state a prima facie case for an ADEA retaliation
claim a plaintiff must establish that : 1) he engaged in protected activity, 2) he
suffered an adverse employment action, and 3) there is a causal nexus between the

protected activity and the adverse employment action. Franzoni, 300 F.3d at 772.

In this case Kocovsky complained about age discrimination on several
occasions. Prior to being terminated, he filed five separate ADEA complaints with
the EEOC. Thus, he engaged in protected activity. We note that Kocovsky asserts
that his retaliation claim is partially based on alleged retaliation for his assistance of
aco-worker in an unrelated sexual harassment matter. Kocovsky has not provided

sufficient evidence that there was retaliation. However, even if there was retaliation

19



' Ex. Ap. 206, 209. He contends his denial of a pay raise was because of his PAR.
As the Court has stated above, the performance reviews used in the PAR were
neither adverse nor subjective in nature. Kocovsky’s contention here is without
merit. Kocovsky also contends that had he not been fired he would have received a
pay raise. The Court finds that this contention is totally without merit. Kocovsky
argues that Lucent refused to relay information necessary for him to complete his
job, that he was generally harassed, and that he was discredited for his ability to
perform his job, do not constitute adverse employment actions. See Coco v. Elmood
Care, Inc. 128 F.3d 1177, 1179, (7th Cir. 1997)(sating“...it is no business of a court
in a discrimination case to decide whether an employer demands ‘too much’ of his
workers...”’). Kocovsky fails to support all of the above mentioned allegations with
sufficient evidence to prove they constituted an adverse employment action, such as
a decrease in wage or salary, a less distinguished title, a material loss of benefits,
any significantly diminished material responsibilities, or other indices that might be
unique to a particular situation. Crady, 993 F.2d at 136(emphasis added); Pl.’s

Mem. in Opp’n to Summ. J.; Pl.’s Statement of Material Facts.

Kocovsky alleges that the denial by his employer for him to participate in the
“buddy system”® constituted an adverse employment action. Lucent contends that at
times Kocovsky’s work had to be reviewed outside the “buddy system” due to

concerns for interpersonal relationships and Kocovsky’s behavior. Def.’s Ex. B p.

‘The “Buddy System” allowed designers to review other designers work before it was reviewed by QA
personnel, Pl.’s App. Ex. D. p. 22.

13



within the futility exception, he "must show that it is certain that [his] claim will be
denied on appeal, not merely that he doubts that an appeal will result in a different
decision").

This court finds that based upon all of the evidence presented, Kocovsky has
not exhausted all of his administrative remedies under the Lucent Plan. See
Gallegos, 210 F.3d 803 at 808(stating that “it has long been recognized in this
Cireuit that the intent of Congress is best effectuated by granting district courts
discretion to require administrative exhaustion’); see also Powell v. AT&T Comm.,
Inc., 938 F.2d 823, 825 (7th Cir.1991);Kross v. Western Elec. Co., Inc. 701 F.2d
1238, 1244 (7th Cir.1983).

Thus, this court finds that there is no genuine issue as to any material factthat
Kocovsky has not exhausted all of administrative remedies under the Lucent Plan

Therefore, we grant the motion for summary judgment on the ERISA claim in
Count II.

CONCLUSION

Therefore, based on the foregoing analysis, summary judgment will be

granted to Lucent on both Count I and Count II of Kocovsky’s Amended Complaint.

Sk D-Zi hp —

Samuel Der-Yeghiayan
United States District Court Judge

Dated: December 1, 2003

23


~ Employment Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 200, et. seg.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). In seeking a grant of summary judgment the moving party must
identify “those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied
by presenting specific evidence on a particular issue or by pointing out “an absence
of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325.
Once the movant has met this burden, the non-moving party cannot simply rest on
the allegations in the pleadings, but, “by affidavits or as otherwise provided for in
[Rule 56], must set forth specific facts showing that there is a genuine issue for
trial.” Fed. R. Civ. P. 56(e). A “genuine issue” in the context ofa motion for
summary judgment is not simply a “metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Rather, a genuine issue of material fact exists when "the evidence is such that a

reasonable jury could return a verdict for the non-moving party." Anderson v.



on Lucent’s part associated with the sexual harassment case, it would be retaliation
in violation of Title VII rather than in violation ofthe ADEA. Such conduct by
Lucent cannot support an ADEA retaliation claim. Lucent would be retaliating
because of Kocovsky’s assistance, rather than because of his age. Of course,
Kocovsky can argue that any adverse actions were taken against him because of his
assistance and his age. However, the mere allegation that Lucent retaliated against
Kocovsky because of his assistance to his co-worker is insufficient to support an
ADBA retaliation claim. We note that Kocovsky clearly indicates that he is solely
bringing an ADEA claim and that there is no indication that he received a right to

sue letter for a Title VII retaliation claim.

Kocovsky’s employment was terminated and thus he suffered an adverse
employment action. This court cannot find that Kocovsky’s termination had any
relation to Kocovsky’s filing of the five EEOC complaints. Even if Kocovsky was
able to establish a causal nexus between his complaints and the adverse employment
action, this court finds that Lucent provides a legitimate reason for his discharge.
Lucent claims that Kocovsky was fired because he did not meet the requirements of
his 1996 PIP. Kocovsky merely states in his answer in a conclusory fashion that
“(t]he evidence clearly shows that Kocovsky’s alleged performance deficiencies
were pretextual.” However, Kocovsky fails to point to specific evidence that shows
that Lucent’s reason is a pretext for unlawful discrimination. Kocovsky states in the

next sentence in his answer that “[b]oth Shaw and Sebeson demonstrated

20



substantively to the provisions in the AT&T Plan.

In Zhou v. Guardian Life Ins. Co. of Am. 295 F.3d 677, 679 (7th Cir. 2002),

the Seventh Circuit explained that:

see As a pre-requisite to filing suit, an ERISA plaintiff must exhaust his internal administrative remedies.
Doe v. Blue Cross & Blue Shield United of Wisc., 112 F.3d 869, 873 (7th Cir.1997). This requirement
furthers the "goals of minimizing the number of frivolous lawsuits" and enables the preparation of a more
complete factual record for judicial review. Gallegos v. Mt. Sinai Medical Center, 210 F 3d 803, 807-08

(7th Cir.2000).
The issue is whether Kocovsky exhausted all of his administrative remedies

under the Lucent Plan with the Pension Plan Administrator (“PPA”). Kocovsky
contends that it is clear the Plan Administrator plans to take no affirmative action on
behalf of Kocovsky. Pl.’s Respons. to Def.’s Mot. for Summ. J. as to Count II. Yet,
Kocovsky admits that he testified that he never completed any of the forms sent to
him nor submitted any such forms as required by the PPA and the Committee. PI.’s

Local Rule 56.1(a)(3) Statement of Facts 20 as to Count II.

The discovery exchanged and the evidence produced asa result, make it clear
that Kocovsky has taken many different routes by which to resolve his pension
status. However, he has failed to provide this court with a single document that
would explain to us how he has properly exhausted ail of his administrative
remedies under the Lucent Plan and according to the Lucent Plan.(emphasis added).
Accordingly, Kocovsky cannot prove that further administrate appeal to the Lucent
PPA in this case would be futile. See Zhou, 295 F.3d at 679. (quoting Lindemann v.
Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir.1996)(sating “for a party to come

22



these named contract employees were under forty at the time they were hired and

Kocovsky was fired. Jd.

Kocovsky has provided the court with a document which contains the names
and birth dates of fifteen individuals. Pl. App. Ex. I. Attached to this document are
twelve letters from AT&T addressed to twelve of these individuals. The letters seem
to inform the individuals that they have been transferred to AT&T Network Systems.

Id. The Plaintiff has submitted to the court a list of documents with employee
names, birth dates, and letters of transfer to a unit with some of the same supervisors
as the plaintiff. Based on these documents alone, we cannot automatically find that
the identified employees are similarly situated to Kocovsky. The Court has to
consider other factors such as whether or not the identified employees were ever
subject to the same standards as Kocovsky, and whether they had engaged in similar
conduct without such differentiating or mitigating circumstances as would
distinguish their conduct or Lucent’s treatment of them. Kocovsky failed to provide
the court with this information. Kocovsky failed to identify a similarly situated
individual directly comparable to him in all material respects. See Peele, 288 F.3rd
319 at 320(quoting Patterson v. Avery Dimension Corp., 281 F.3d 676, 680 (7th Cir.
2002). After a review of all the relevant factors and documents in the record, the
court cannot find that Kocovsky was treated less favorably than any similarly
situated male or younger employees at Lucent. See Peele, 288 F.3rd 319 at

331 (quoting Patterson, 281 F.3d at 680(holding that "we cannot compare [an

17


~ and also obtained the progress notes of a co-worker, Cassandra McKinney, who
worked with him on the project. Pl.’s Statement of Material Facts § 7; Pl.’s App. Ex.
B, C. Luker met with Kocovsky for interim performance reviews of progress and
results while on the PIP. Luker recorded these reviews in well documented and
detailed memorandums. Def.’s App. Ex. F,G,H,I. On April 2, 1996, Kocovsky
completed his work as a printed wiring board designer on the UN192d AM2 project.

Def.’s App. Ex. J.

Kocovsky argues that because he satisfactorily completed the UN192d AM2
project contained in his PIP, he should have been considered performing his job
satisfactorily. Kocovsky supports this argument with a co-workers project notes of
the PIP, his own documented project performance notes of the PIP, and a series of
emails he saved which record various correspondences between Kocovsky and his
co-workers and supervisor. Pl.’s App. A, B, C. All of these documents support the
conclusion that Kocovsky met the objectives of his first performance problem
objective and part ofhis second performance objective. Furthermore, in Luker’s
Final Performance Review of Kocovsky, Luker states that Kocovsky met the criteria
set forth in Performance Problem 1 and partially met the criteria set forth in

Performance Problem 2. Def.’s App. Ex. J.

However, Kocovsky fails to acknowledge (or address) the remaining findings
of Luker’s Final Performance Review. Luker noted that during the PIP period,

Kocovsky’s behavior was marked by an eagerness to contend, resistance to the


the legitimate employment expectations of her employer, she suffered an adverse
employment action; and (4) she was treated less favorably than similarly situated
male or younger employees. Peele, 288 F.3d at 326; see also e.g.; Bennington v.
Caterpillar, Inc., 275 F.3d 654, 659 (7th Cir.2001). Ifthe plaintiff is able to
establish a prima facie case of sex or age discrimination, the employer must then
produce a legitimate, nondiscriminatory reason for the employee's termination.
Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009 (7th Cir.2000). Ifthe employer
offers a legitimate, nondiscriminatory explanation for the termination, the plaintiff
must then rebut that explanation by presenting evidence sufficient to enable a trier of
fact to find that the employer's proffered explanation is pretextual. Jd. Pretext
"means a dishonest explanation, a lie rather than an oddity or an error." Kulumani v.
Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir.2000). A plaintiff does not
reach the pretext stage, however, unless she first establishes a prima facie case of
discrimination. Peele, 288 F.3d at 326; Coco v. Elmwood Care, Inc., 128 F.3d 1177,
1179 (7th Cir.1997).

A. Prima Facie Case

(1) Whether or not Kocovsky is a member of a protected class.

At the time of his termination, Kocovsky was an individual over 40 years old,
and therefore qualifies as a member of a protected class under the ADEA. 29 U.S.C,

§ § 623 et seq.
(2) Whether or not at the time of his termination on May 8, 1996, Kocovsky

6


Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216
F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole in a
light most favorable to the non-moving party and draw all reasonable inferences that
favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport
Co., 212 F.3d 969, 972 (7th Cir. 2000).
DISCUSSION

L Employment Discrimination

The Age Discrimination Employment Act (“ADEA”) prohibits employers
from terminating employees because of their age. 29 U.S.C. § 623(a). Kocovsky
has not presented any direct evidence of discrimination by Lucent here on this issue,
therefore in reviewing his ADEA claims we will proceed under the burden shifting
analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Peele v.
Country Mutual Insurance, 288 F.3d 319, 327 (7" Cir. 2002)(explaining that in the
absence of direct evidence in an age discrimination suit the McDonnell Douglas
burden shifting analysis will be applied); see also Crady v. Liberty Nat. Bank and
Trust Co. of Indiana, 993 F.2d 132, 134 (7th Cir. 1993).
- McDonnell Douglas Burden Shifting Analysis

Under McDonnell Douglas, a plaintiff will establish a prima facie case of age
discrimination where she demonstrates, by a preponderance of the evidence, that: (1)
she is a member of a protected class; (2) at the time of her termination, she was

meeting her employer’s legitimate employment expectations; (3) in spite of meeting



employer's] treatment of [a plaintiff with that co-worker] ... [if the plaintiff] fail[s] to
meet her burden of establishing that [the co-worker] is a similarly situated

employee.").

In this case, the record clearly demonstrates that Kocovsky’s job performance
was unsatisfactory, he was not meeting Lucent’s legitimate employment
expectations, and that he failed to prove that he was treated less favorably than
similarly situated male or younger employees at Lucent. As such, this court finds
that Kocovsky has failed to establish the prima facie case required under the
McDonnell Douglas burden shifting analysis. Since Kocovsky has failed to establish
the first prong of the McDonnell Douglas burden shifting analysis, the court need not
address the remaining prongs. This court finds that there is no genuine issue as to

any material fact relating to Kocovsky’s employment discrimination claim.
Therefore, we grant the motion for summary judgment on the ADEA
employment discrimination claim.
I. Retaliation
Kocovsky next asserts that Lucent retaliated against him because he lodged
his age discrimination complaints with the EEOC. To defeat a motion for summary
judgment a plaintiff bringing an ADEA retaliation claim must first establish a prima

facie case. Franzoni y. Hartmarx Corp., 300 F.3d 767, 772 (7" Cir. 2002). Ifthe

plaintiff establishes a prima facie case, the burden shifts to the defendant to present a

18


date required of the Associates in Department NQ9230000, as defined by Mr. J. M.
Sebeson, Director. During the performance objective setting process for 1996, should
Mr. Kocovsky receive feedback from his manager(s), giving him clear suggestions,
guidelines, or directives, that are intended to modify his performance objectives such
that they possess SMART attributes, he will follow those directives accordingly.

- This performance objective is not limited to the objective setting process, but also
extends to his day-to-day operations and activities in the work place, meaning that if a
member of the NQ9230000 management team offers constructive feedback or directs
some reasonable action as it pertains to his job or assignment, he should comply and
not openly defy such requests as he has in the past.

Performance Problem (3) Rarely admits a lack of skill or knowledge and does not acknowledge his own
errors or mistakes,

- Mr. Kocovsky’s performance objective here is to openly acknowledge his errors or
mistakes. The focus here his to understand the error and learn how to avoid repeating
it, not to dwell on who committed the error. The latter behavior only expends valuable
time and resources which cannot be recovered, including the resources of Mr.
Kocovsky, his peers and his managers. Peer feedback and/or input will be used here in
assessing the performance results for this objective.

Performance Problem (4) Filters or even changes information to make it consistent with his views or
assumptions.

- Mr. Kocovsky’s performance objective here will be to receive and accept information
or feedback accurately and in a positive manner. The assessment of this objective
may include feedback or input from peers or Mr. Kocovsky’s management.

Interim performance reviews of progress and results were to be held bi-weekly with
Kocovsky and Luker and/or Mr. J.M. Sebeson®. The PIP document warned
Kocovsky that a failure to complete the plan successfully would result in his
termination as an employee of AT&T. Def.’s App. Ex. D. The PIP was reviewed

with Kocovsky by Shaw. Kocovsky then signed the document.*

Over the next two and a half months Kocovsky remained on the PIP and
worked as a printed wiring board designer on a project called the UN192d AM2.

Def.’s App. Ex. J. Kocovsky documented his personal progress notes of the project,

3John Sebeson was a group leader and a director of the performance reviews at the time Kocovsky was
terminated. Def. App. Ex. D.

4 Kocovsky signed the PIP document under a note that read “Signed under duress January 24, 1996".

8


Minute Order Form (06/97)

a

United States District Court, Northern District of Hlinois

Narie of Assigned Judge . i Sitting Judge if Other
or Magistrate Judge Samuel Der-Yeghiayan than Assigned Judge
CASE NUMBER 01 C 7844 DATE 12/1/2003
CASE Kocovsky vs. Lucent Technologies, 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
MOTION: of the motion being presented.]
DOCKET ENTRY:
(6) o Filed motion of [ use listing in “Motion” box above.]
(2) a] Brief in support of motion due.
(3) a Answer brief to motion due. . Reply to answer brief due__
(4) a Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) oO Trial[set for/re-set for] on at
(8) ao [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) OLocal Rule 41.1 OO FRCP41(a)(1) OO FRCP41(a)(2).
ao) of {Other docket entry] | This matter is before the Court on Defendant Lucent Technologies, Inc’s
motions for partial summary judgment as to Count I and II of Plaintiff Joseph J. Kocovsky’s amended
complaint. Count I seeks relief for employment discrimination pursuant to 29 U.S.C. § 623(a), as well
as a retaliation claim. Count II seeks relief for violations of the Employment Retirement Income Security
Act (“ERISA”) pursuant to 29 U.S.C. §§ 200, et. seq. For the reasons stated on the attached memorandum
opinion, the Court hereby grants both motions for partial summary judgment. All pending dates and
motions are hereby stricken as moot. Enter Memorandum Opinion. Terminating case.
dl) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court. “Document
. ‘ ~. Number.
No notices required. unber of nies rane
Notices mailed by judge’s staff. .
. DEC 2003
lolified counsel by telephone. date ddghetea
wv | Docketing to mail notices. 2
Mail AO 450 form. 1Yuno9 LoWtS!a Sn ocr eons _
vf
Copy to judge/magistrate judge. uaa
Q1:€ HW 2- 930u usm
courtroom
m inva gt g3-q34
Date/time received in
central Clerk’s Office nailing deputy initials



that required corrective action. Kocovsky has admitted that he was aware of this
fact. Pl.’s Answer to Def.’s Rule 56.1(a)(3) Statement of Material Facts § 23; Def.’s
App. Ex. F,G,H,I). Kocovsky’s poor 1995 PAR, the testimony of Kocovsky’s
former supervisors, Kocovsky’s admissions to the Defendant’s Rule 56.1(a)(3)
Statement of Facts, and his failure to successfully complete the entire PIP are
sufficient evidence that Kocovsky did not meet Lucent’s legitimate employment
expectations at the time of his termination. Def.’s App. Ex. B, C, J; Pl.’s Answer to

Def. Rule 56.1(a)(3) Statement of Material Facts.

(3) Whether Kocovsky suffered an adverse employment action, even if he

could have proven he met Lucent’s legitimate employment expectations.

As we have stated above, Kocovsky did not meet the legitimate employment
expectations of Lucent. Notwithstanding, for purposes of analyzing McDonnell
Douglas, we briefly review the following allegations Kocovsky believes were
discriminatory in nature and thus claims that they constituted a materially adverse
employment action: (1) denial of training on Mentor Graphics Design System; (2)
involuntary job reassignment; (3) manner in which performance reviews were
conducted; (4) denial of raise; (5) refusal to relay information necessary for him to
complete his job; (6) the separation of his employment; (7) denial of participation in
a company “buddy system”; (8) general harassment; and (9) discrediting his ability
to perform his job. Pl.’s Answer to Def.’s Rule 56.1(a)(3) Statement of Material

Facts { 34.

11


' process, and to patterns generally inconsistent with the identified Performance
Problems 2,3, and 4. Def.’s App. Ex. J. Luker found that Kocovsky failed to meet
the criteria set forth in Performance Problems 3 and 4, and partially failed in
performance problem 2. Luker then terminated Kocovsky based upon his poor PAR

for 1995 and his failure to successfully complete his PIP in 1996, Def.’s App. Ex. E.

A plaintiff must prove that he was meeting his employer’s bona fide
expectations, before he can force the employer to produce the reasons for why he
was fired or otherwise subjected to adverse action. Coco v. Elmwood Care, Inc., 128
F.3d 1177, 1180 (7th Cir.1997). When a district court evaluates the question of
whether an employee was meeting an employer’s legitimate employment
expectations, the issue is not employee’s past performance, but “whether the
employee was performing well at the time of [her] termination”. Peele v. Country
Mut Ins, Co., 288 F.3d 319, 329 (7th Cir. 2002)(quoting Kamzanos y. Navistar
Intern. Transp. Corp., 948 F.2d 332, 336 (7th Cir.1991). The evidence submitted by
Kocovsky has failed to prove that he met Lucent’s legitimate employment
expectations at the time of his termination.’ Kocovsky’s reliance on the argument
that because he completed the UN192d AM2 project, he then successfully completed

his PIP is also without merit. The PIP listed four separate performance problems

5Kocovsky argues that certain co-workers will testify that he successfully completed his PIP. This argument
is without merit. General statements of co-workers, indicating that plaintiff's job performance was satisfactory, are
insufficient to create a material issue of fact as to whether a plaintiff was meeting her employer’s legitimate
employment expectations at the time she was terminated. Peele, 288 F.3d 319 at 329(citing Dey v. Colt Constr. &
Dev, Co., 28 F.3d 1446, 1460 (7th Cir. 1994). Furthermore, the two affidavits Kocovsky has submitted by two of his
former co-workers that are filed with the Clerk of the Court are not signed by either affiant. Pl.’s App. Ex. F, G.

10


was meeting Lucent’s legitimate employment expectations.

Lucent contends that Kocovsky was not performing satisfactorily at the time
of his termination. Kocovsky states that he was satisfactorily performing his job.

After Kocovsky received an unsatisfactory Performance Appraisal Record
evaluation (“PAR”) for the 1995 year, Shaw determined that a formal Performance
Improvement Plan (“PIP”) should be implemented for Kocovsky pursuant to AT&T
Personnel Guide, section 12-1, for “Managing Performance Problems”. Def.’s App.
Ex. D. In January of 1996, Kocovsky was informed that he would be placed on a
Lucent PIP. A PIP’s effect is to act as a performance measure. Def.’s App. Ex. B.
The PIP document described key performance and behavioral problems to be
overcome by Kocovsky, gave the parameters of the PIP probationary assignment,
listed the key objectives, and provided the mechanisms by which success or failure
would be determined at the conclusion of the final performance review. Def.’s App.
Ex. D. The PIP specified four areas of Kocovsky’s performance requiring corrective
action and listed the means by which Lucent expected Kocovsky to overcome these
areas:

Performance Problem (1) A high level of PWP Interconnection QA errors, relative to his design
peers, during the PWP Interconnection Design Process.

- Mr. Kocovsky's performance objective here is to reduce his error rate to less that 1.4
design errors per QA inspection submission.

- Mr. Kocovsky’s performance objective here shall be to realize a performance result
reflecting an average of 3 QA inspection submittals per design code or less.

- Mr. Kocovsky’s performance objective here is to have zero QA inspection submittals
required to fix or correct design problems designed during a previous QA inspection.

Performance Problem (2) Often refuses to acknowledge and act upon suggestions or directives of his
immediate manager.

- Mr. Kocovsky’s performance objective here will be establish a PAR for 1996 by the


indifference and animus towards Kocovsky.” However, even if this unsupported
allegation were true, personal animus or indifference are insufficient to support an
ADEA claim. Kocovsky bears the burden of showing that Lucent’s reason was a
pretext for unlawful retaliation against Kocovsky in violation of the ADEA.
Kocovsky clearly has not met this burden and therefore, we grant the motion for

summary judgment on the ADEA retaliation claim.

Thus, this court finds that there is no genuine issue as to any material fact as
to Count I of Kocovsky’s Amended Complaint, and as a matter of law grants

Lucent’s motion for summary judgment as to Count I.
Ii. Employment Retirement Income Security Act (“ERISA”)

Kocovsky alleges violations of the Employment Retirement Income Security
Act (“ERISA”). 29 U.S.C. §§ 200, et. seg. Lucent argues that Kocovsky has failed
to exhaust his administrative remedies and as a result cannot proceed on his ERISA

claims in Federal Court,

Kocovsky was a participant under the AT&T Management Pension Plan
(“AT&T Plan”), Kocovsky was in an organization in AT&T that became part of
Lucent and he was a Lucent employee until the termination of his employment on
May 8, 1996. Effective October 1, 1996 assets from the AT&T Plan were
transferred to the Lucent Management Pension Plan (“Lucent Plan”). Kocovsky
then ceased being a participant under the AT&T Plan and became a participant
under the Lucent Plan. The Lucent Plan contained provisions that were identical

21


' wiring board designer on a project called the UN192d AM2. For approximately the
next two ands a half months, Luker met with Kocovsky for interim reviews of his
progress of the PIP. On May 8, 1996, Luker completed Kocovsky’s final
performance review. In the review, Luker found that Kocovsky failed to
successfully correct three out of four of his performance problems and that his
performance was still considered unsatisfactory. Luker then issued a letter of
termination that terminated Kocovsky based upon his poor PAR for 1995 and his
failure to successfully meet the objectives set forth in his PIP.

On May 9, 1996, Kocovsky filed an amended? charge of discrimination with
the Illinois Department of Human Rights and the Equal Employment Opportunity
Commission (“EEOC”). The charge alleged age discrimination and retaliation
between September 22, 1994 and May 8, 1996. On July 31, 2001, the EEOC issued
Kocovsky a Notice of Right to Sue letter under the Age Discrimination in
Employment Act (“ADEA”).

On October 11, 2001, Kocovsky filed a complaint against Lucent in the
Northern District of Illinois. Kocovsky amended this complaint on April 21, 2003.
Kocovsky’s First Amended Complaint alleges employment discrimination under the

ADEA, 29 U.S.C. § § 623 et seq., a retaliation claim, and violations of the

2 Kocovsky had previously filed five separate charges of discrimination against AT&T Bell
Laboratories between the dates of September 27, 1994 and March 20, 1996. Pl.’s Am. Comp!. Ex. 2-6. The May 9,
1996 charge of discrimination was an amended charge based upon the previous five charges filed. Pl.’s Am. Compl.
Ex, 2-7.



161-162. This court finds that the manner in which an employer reviews the work
product of an employee is not in of itself an adverse employment action.
Furthermore, there is no indication that the “buddy system” was considered to be an
essential requirement for Kocovsky’s employment. Kocovsky’s other contention
that his termination constitutes an adverse employment action would have merit had
Kocovsky been meeting Lucent’s legitimate employment expectations, which he was

not.

(4) Whether or not Kocovsky was treated less favorably than similarly

situated male or younger employees.

Kocovsky states that similarly situated employees outside the protected class
were changing their status from temporary contract employees to full-time
employees while Kocovsky was being fired. Pl.’s Mem. in Opp’n to Summ. J.; Pl.’s
Statement of Material Facts {’s 19, 20. However, Kocovsky has failed to produce
sufficient evidence to raise an inference that Lucent applied its legitimate
employment actions in a disparate manner(i.e., applied expectations to similarly
situated male and younger employees in a more favorable manner). See Peele, 288
F.3rd at 329(explaining how a plaintiff can establish a prima facie case and proceed

to the pretext inquiry).

“A plaintiff may demonstrate that another employee is ‘similarly situated’ to
her by ‘show[ing] that there is someone who is directly comparable to her in all

material respects’.” See Peele, 288 F.3rd at 320(quoting Patterson v. Avery

14



given to every employee at Lucent. Kocovsky next maintains that he is similarly
situated to a forty-nine year old male because (according to Kocovsky) the male was
not accused of making too many errors or placed on probation. Kocovsky does not
produce the male’s title at Lucent, the period of time he worked there, or the name of
the male’s supervisor. Finally, Kocovsky states that a male in his late thirties who
threatened his supervisor with a gun, was placed on medical leave, and given a
salary increase is also similarly situated to him. Kocovsky fails to show that any of
these individuals had the same supervisor as Kocovsky, or that they were subject to
the same standards as Kocovsky, or that they had engaged in similar conduct without
such differentiating or mitigating circumstances as would distinguish their conduct
or Lucent’s treatment of them. See Peele, 288 F.3rd 319 at 320. Kocovsky has
failed to prove that any of the individuals named in the EEOC charge were similarly

situated to him.

Kocovsky also argues that he was the only employee over forty or under forty
in John Sebseson’s® department where pre-quality testing was used to evaluate his
performance and ultimately to terminate him. Pl.’s Mem. in Opp’n to Summ. J.
Kocovsky supports this contention by stating that at or slightly before his
termination, Shaw hired between ten and fifteen contract workers to become
permanent Lucent employees. PI.’s Amend Compl. 24; Pl’s Statement of Material

Facts fs 19, 20; Pl. App. Ex. I. Kocovsky contends that twelve out of fifteen of

16


September, 1963 through May, 1996. Kocovsky was initially hired as a mail clerk,
became a draftsman, then a designer, and for approximately the last two to three
years of his employment at Lucent worked in the printed wiring board design
department.

In January of 1996, Kocovsky’s immediate supervisor Mr. Rick L. Shaw
(“Shaw”), completed Kocovsky’s evaluation for the year of 1995. The Lucent
evaluation was referred to as a Performance Appraisal Record (“PAR”). The PAR
indicated Kocovsky’s strengths and the areas which were in need of improvement.
Shaw reviewed the PAR with Kocovsky and signed and dated the document.
Kocovsky chose not to sign the PAR. After completing the PAR evaluation, Shaw
determined that a formal Performance Improvement Plan (“PIP”) should be
implemented for Kocovsky pursuant to AT&T Personnel Guide, section 12-1, for
“Managing Performance Problems”. The PIP identified what Shaw felt were
Kocovsky’s performance problems. The PIP also contained a development plan
with specific objectives which Kocovsky would be required to successfully complete
over the course of the PIP. The PIP warned Kocoysky that a failure to complete the
plan successfully would result in his termination as an employee of AT&T.

After Kocovsky was placed on the PIP, David M. Luker (“Luker”) became

Kocovsky’s supervisor. Kocovsky remained on the PIP and worked as a printed

Statement of Material Facts as to Count II ’s 2-5. The court makes reference to Lucent as the defendant throughout
the opinion, but also frequently mentions AT&T and its policies that were implemented at the time of Kocovsky’s
employment.

2


IN THE UNITED STATES DISTRICT COURT mon
FOR THE NORTHERN DISTRICT OF ILLINOIS _
EASTERN DIVISION DEL 2- 28

JOSEPH KOCOVSKY, )
Plaintiff, }
v. } No. 01 C 7844
LUCENT TECHNOLOGIES, INC., ; DEv 2 2003
Defendants. }
MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the Court on Defendant Lucent Technologies, Inc.
(“Lucent”) motions for summary judgment as to Count I and II of Plaintiff Joseph J.
Kocovsky’s (“Kocovsky”) Amended Complaint. Count I seeks relief for
employment discrimination pursuant to 29 U.S.C. § 623(a), as well as a retaliation
claim. Count II seeks relief for violations of the Employment Retirement Income
Security Act (“ERISA”) pursuant to 29 U.S.C. §§ 200, et. seg. For the reasons
stated below we grant both motions for summary judgment.

BACKGROUND

Kocovsky was employed by Lucent and its predecessors' from approximately

' Kocovsky was formerly employed by AT&T Corp. (“AT&T”). In September, 1995 AT&T announced it
would be establishing three separate companies, two of which would be spun off from AT&T. One of those
companies was Lucent. Kocovsky was in an organization at AT&T that became part of Lucent. Kocovsky was a
Lucent employee until the termination of his employment on May 8, 1996. PI.’s Resp. to Def.’s Rule 56.1(a)(3)

\

1



As the Seventh Circuit has stated, “a materially adverse change might be
indicated by a termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to a
particular situation.” Crady v. Liberty Nat. Bank and Trust Co. of Indiana, 993 F.2d
132, 136 (7th Cir. 1993). In addition, a materially adverse change in the terms and
conditions of employment must be more disruptive than a mere inconvenience or an

alteration of job responsibilities. Id.

Kocovsky’s argument that he was denied training on the Mentor Graphics
Design Systems fails because he admits he was aware that every employee would
not receive training and also admits that he did receive in-house Mentor Graphics
training twice in 1994. Pl.’s Answer to Def. Rule 56.1(a)(3) Statement of Material
Facts {’s 52, 53,54. Kocovsky’s argument that he received an involuntary job
reassignment fails because, as Kocovsky admits, he was not reassigned. Pl.’s

Answer to Def. Rule 56.1(a)(3) Statement of Material Facts { 64.

Kocovsky also challenges the manner in which performance reviews were
conducted. However, adverse performance ratings alone usually do not constitute an
adverse action. Smart y. Ball State University, 89 F.3d 437, 442 (7th Cir 1996).
This court finds that the performance reviews used in the PAR evaluation and in the
PIP are neither adverse nor subjective in nature. Def.’s App. Ex. C, D, F, G, H, I, J.

Kocovsky’s next alleges that he was discriminatorily denied a pay raise. Def. App.

12


Dimension Corp., 281 F.3d 676, 680 (7th Cir. 2002). To determine whether
employees are similarly situated, "a court must look at all relevant factors, the
number of which depends on the context of the case." See Peele, 288 F.3rd at
320(quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617(7th Cir.2000)).
Furthermore, "in disciplinary cases--in which a plaintiff claims that [she] was
disciplined by [her] employer more harshly than a similarly situated employee based
on some prohibited reason--a plaintiff must show that [she] is similarly situated with
respect to performance, qualifications, and conduct." See Peele, 288 F.3rd at
320(emphasis added)(quoting Radue, 219 F.3d 617). "This normally entails a
showing that the two employees dealt with the same supervisor, were subject to the
same standards, and had engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish their conduct or the employer's
treatment of them." See Peele, 288 F.3rd at 320(emphasis added)(quoting Radue,
219 F.3d at 617-618).

Kocovsky, in his sixth amended EEOC charge points to three individuals’
who he alleges are similarly situated to himself. Pl.’s Amend Compl. Ex. 7. First,
he points to a thirty-six year old female, who was a Senior Technical Associate.
This comparison fails because Kocovsky was not a Senior Technical Associate at

Lucent and we have already resolved that training for Mentor Graphics was not

7 Although Kocovsky names the individuals in his EEOC charge, we chose not state there name in order to
respect their privacy.

15