Opinion
No. 98 C 8124
September 8, 1999
MEMORANDUM OPINION AND ORDER
Pauline Mayer ("Mayer") sues Kemper Insurance, Inc. ("Kemper") for discharging her based on her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Kemper moves for summary judgment under Fed.R.Civ.P. 56. Mayer opposes the motion.
BACKGROUND
Before reciting the facts, the court must dispense with two procedural issues concerning the permissible sources of those facts. The first concerns Mayer's submission of the affidavit of one of her coworkers, Florence O'Brien ("O'Brien"). Mayer may not rely on this affidavit because she did not disclose O'Brien as a potential witness prior to the close of discovery. Mayer failed to name O'Brien as a person likely to have discoverable information in her Rule 26(a)(1) disclosures, and she also failed to name O'Brien in her responses to Kemper's interrogatories seeking identification of those persons with knowledge of the relevant facts. As such, she cannot now rely on O'Brien's testimony. See Fed.R.Civ.P. 37(c). Antoine-Tubbs v. Local 513, Air Transport Division, 1998 WL 953725, at *3 (N.D.Tex. Sept. 22, 1998) (precluding use on summary judgment of affidavit given by witness not disclosed during discovery);Conrad v. P.T.O. Services, Inc., 1996 WL 296652, at *3 (N.D.Ill. June 3, 1996). Fed.R.Civ.P. 37(c)(1) prohibits reliance on a surprise" affidavit unless the party failing to properly disclose the witness has a substantial justification for the failure and there is no prejudice to the other party.
Mayer does not make the required showing; rather, she argues that because Kemper employed O'Brien and because Kemper knew that O'Brien was one of Mayer's fellow clerks, it should have known that O'Brien's testimony might bear on the case. But this view overlooks the simple fact that the discovery rules place the burden on the party seeking to rely on a witness to disclose that witness. The discovery rules do not obligate corporate defendants to survey their workforce and try to anticipate possible witnesses for the adverse party.
Thus, Mayer may not rely on O'Brien's procedurally defective affidavit. However, even if Mayer had properly identified O'Brien, she still could not rely on the affidavit because its substance is irrelevant to the analysis of Mayer's claim on summary judgment. The court will not treat the affidavit's substantive deficiencies here; it makes better sense to do so during the course of an analysis of Mayer's claim.
In addition, the court cannot recognize a majority of Mayer's facts submitted pursuant to Local Rule 12(N). Local Rule 12(N) of the Northern District of Illinois provides a two-staged mechanism whereby the party opposing summary judgment may controvert the facts offered by the moving party. First, if the nonmoving party wishes to dispute any facts offered in the moving party's 12(M) statement, Rule 12(N)(3)(a) requires it to do so by contesting the moving party's statement, paragraph by paragraph, with citation to materials relied upon. If the nonmoving party wishes to offer its own facts warranting denial of summary judgment, Rule 12(N)(3)(b) requires it to list those facts in a separate statement containing numbered paragraphs with supporting citations to the record.
Mayer fails to properly state those facts it believes warrant denial of summary judgment in the manner required by Local Rule 12. First, Mayer offers most of these facts in her 12(N)(3)(a) response to Kemper's 12 (M) statement of facts, "commingl[ing] them seamlessly with paraphrases of [Kemper's] 12(M) facts." Stohl v. Saint Joseph Health Centers and Hospital, 1998 WL 312005, at *3 (N.D.Ill. June 4, 1998). For example, in paragraph 8 of her 12(N)(3)(a) statement, Mayer disputes Kemper's assertion that Mayer received below-standard rankings in six areas on her January 1991 appraisal. But she does not offer facts showing that she did not in fact receive poor rankings in those six areas; rather, she lists seven other areas in which she received satisfactory rankings. These seven satisfactory rankings do not cast doubt on the fact that Mayer also received six poor ratings. Rather, they are additional facts, presumably going to show that she was a good employee. If Mayer believed these facts require denial of summary judgment, she should have included them in the separately numbered paragraphs of her 12(N)(3)(b) statement. Kemper "cannot be expected to reply to additional facts not properly designated in the terms required by the rule." Stohl, 1998 WL 312005, at *3. Accordingly, additional facts in Mayer's 12(N)(3)(a) response are disregarded, and the Kemper facts they purportedly dispute are treated as admitted. See Stohl, 1998 WL 312005, at *3; Local Rule 12(N)(3)(b)
Second, most of Mayer's facts properly stated as separate additional facts under 12(N)(3)(b) are not adequately supported. Mayer supports most of these with citation either to the complaint or the O'Brien affidavit. But a complaint cannot serve as a source of fact, and as already noted, Mayer may not rely on the O'Brien affidavit.
It is time now to turn to the facts, which are undisputed unless otherwise noted.
A. Mayer's Early Years at Kemper
In 1990, Kemper hired Mayer as a claim clerk II in its Bensenville office. Defendant's 12(M) statement of facts ("Def.12(M)") at ¶ 2. Mayer was 53 at the time. Id. ¶ 2. As a claim clerk II, Mayer's tasks included receiving and distributing incoming mail, setting up claim files, typing, answering the phone, sorting correspondence, filing, preparing outgoing mail, and operating office equipment. Id. ¶ 3. Mayer's supervisor was Sheila Whyte ("Whyte"). Mayer received a fifteen percent raise and a promotion from claim clerk II to claim clerk III. Plaintiff's 12(N)(3)(b) statement of facts ("Pl.12(N)(3)(b)") at ¶ 62.
On numerous occasions in the months following Mayer's hire, Whyte noted multiple problems with Mayer's performance. In September 1990, Whyte informed Mayer that she needed to improve her productivity in dealing with her daily work flow. Def.12(M) at ¶ 4. In October 1990, Whyte gave Mayer a memorandum again noting Mayer's need to increase her workflow output. Id. ¶ 5. This memorandum specifically mentioned Mayer's failure to timely process the morning mail and approved bills.Id. ¶ 5. That same month, Whyte conducted a supervisor's follow-up interview with Mayer. Id. ¶ 6. Whyte's written memorandum of that interview noted that Mayer needed to continue to increase speed in all aspects of her daily workflow, specifically mentioning a continued delay in mail processing. Id. ¶ 6. Mayer disagreed with the comment concerning mail processing, but she did not disagree with any other evaluation in the memorandum. Id. ¶ 6.
In November 1990, Whyte gave Mayer a ranking of "B." Id., ¶ 7. A "B" ranking indicated performance below Kemper standards and that the employee had one or more serious performance deficiencies. Def.12(M) at ¶ 7; Pl.12(N)(3)(a) at ¶ 7. In the accompanying performance memorandum, Whyte explained that the ranking resulted from Mayer's failure to improve her daily output of bill payment, new claim set-ups, and mail distribution. Def.12(M) at ¶ 7. Whyte also explained that Mayer's lack of productivity caused other clerks to pick up the backlog and could result in placement on probation. Id. ¶ 7. Whyte discussed the ranking with Mayer, and Mayer did not complain about the ranking to anyone. Id. ¶ 7.
Whyte evaluated Mayer again in January 1991. Id. ¶ 8. Whyte wrote that Mayer had shown little improvement since her last appraisal and that she must increase her daily output in all aspects of her workflow. Id., ¶ 8. The report mentioned substandard rankings in file creation, payments, communications, efficiency, control operator and general duties. Id. ¶ 8. Mayer did not register disagreement with or complain about the evaluation, but wrote that she would try to work harder and complete more work. Id. ¶ 8.
Whyte again criticized Mayer's workflow productivity and daily output in an April 1991 appraisal. Id. ¶ 9. In so doing, Whyte noted Mayer's failure to meet daily goals for new claim set-ups and bill processing.Id. ¶ 9. Mayer also received below standard rankings in payments, communications, and efficiency. Id. ¶ 9. Mayer conceded that she need to be more efficient and to do her work faster. Id. ¶ 9. Mayer repeated these sentiments during her evaluation in July 1992. Id. ¶ 10. After again receiving two below standard rankings, Mayer wrote that she would "try to work faster and more efficiently, and get more work done." Id. ¶ 10.
B. Mayer's intervening years at Kemper
From 1993 through 1996, Mayer continued to receive below-standard rankings. In June 1993, Mayer received below standard rankings in payments, communication, and training. Id. ¶ 11. In May 1994, Mayer again received below standard rankings in payments and communications.Id. ¶ 12. In April 1995, Mayer received a below standard ranking in filing. Id. ¶ 13. Mayer did not contest any of these evaluations in the sections permitting employee comments, and did not disagree with the evaluations. Id. ¶¶ 11-13. In fact, Mayer wrote that she needed "to get better organized with [her] work flow" on her May 1994 evaluation.Id. ¶ 12.
In March 1996, Mayer received an overall ranking of "3," denoting generally acceptable performance, but that some performance goals were not being met. Id. ¶ 14. This ranking was based on her failure to meet standards in seven areas. Id. ¶ 14. Mayer received the "3" ranking again in February 1997, based on her failure to meet standards in four areas. Id. ¶ 15. Mayer did not contest either of these rankings at the time. Id. ¶¶ 14-15.
Whyte also criticized Mayer in 1997 for failing to use a computer. In 1997, Whyte changed the procedures for typing recording statements and required use of a computer rather than a typewriter. Id. ¶ 16. Whyte trained the entire clerical staff, including Mayer, in the use of the computers. Id. ¶ 17. However, Mayer continued to use a typewriter, despite acknowledging that there was nothing wrong with requiring the use of a computer. Id. ¶ 17.
C. Kemper's reorganization
Kemper reorganized, downsized, and closed some of its offices in 1997. This forced it to reroute some of the claims work from the closed offices to the Bensenville office. Id. ¶ 18. Whyte was not allowed to hire additional staff at the Bensenville office to deal with the increase in claims volume, so she instructed her staff that they would each have to do additional work. Id. ¶ 18.
In her first evaluation following the increase in claims volume at the Bensenville office, Mayer received a "4" ranking, the lowest possible evaluation. Id. ¶ 19. Whyte stated that Mayer's performance had declined because, as a result of the downsizing, Whyte had to give Mayer some tasks that she had previously taken away from her, and that Mayer could not adequately perform those tasks. Id. ¶ 19. Whyte noted Mayer's poor performance in organization, telephone skills, and communication, and the fact that she persisted in using a typewriter.Id. ¶ 19. Mayer received rankings of below standard in seven areas.Id. ¶ 20.
Whyte remarked, "[W]e continue to see serious problems re: volume and accuracy and her ability to perform duties expected of a Claim Clerk III" and that Mayer's "contribution to the unit's successes are minimal." Id. ¶ 20. Whyte concluded, "[I]f immediate improvement is not shown in her performance this can lead to termination." Id. ¶ 20. In the employee comments section, while Mayer did not contest any of the specific findings, she wrote that "an [employee] should not be compared with another [employee]." Id. ¶ 20. But Mayer did not complain about the evaluation to anyone. Id. ¶ 20.
Mayer acknowledged that around this time she was aware that her job was in jeopardy and that she would be terminated if her performance did not improve. Id. ¶ 21. After the appraisal, Whyte began meeting with Mayer on a semi-regular basis to help her overcome some of her problems.Id. ¶ 21. Despite these attempts, Whyte concluded that Mayer was unable to perform at a satisfactory level. Id. ¶ 22. Whyte gave Mayer a performance memorandum in March 1998 detailing a number of problems and advising her that she would be terminated if she did not improve. Id. ¶ 22. She noted specifically Mayer's failure to properly set up claims, complete "come ups," respond to her Lotus Notes messages, and process five specific claims files. Id. ¶ 22. Mayer did not dispute the evaluation aside from contesting Whyte's conclusion as to one of the specific claims files. Id. ¶ 22. In addition, Mayer admitted that her desk was messy, and that she had problems with the Wednesday morning letter run and problems using her computer. Id. ¶ 22. Mayer does not believe that she complained of this memorandum to anyone at Kemper. Pl.12 (N)(3)(a) at ¶ 22.
Whyte repeated her warnings to Mayer in an April 1998 evaluation and noted a number of areas in which Whyte expected to see "an overall improvement in all [Mayer's] work;" Mayer was advised she needed to "pick up [her] pace in all [her] objectives." Def.12(M) at ¶ 23. Mayer did not comment on or complain about the evaluation at the time. Id. ¶ 23.
In light of these warnings and after seeing no evidence that Mayer would be able to improve in her problems areas, Whyte advised her supervisor, Pat Oglietti ("Oglietti") of the situation. Id. ¶ 24. Oglietti and Whyte met with Mayer on May 8, 1998 and discharged her. Id. ¶ 24. Mayer was 61 at the time of discharge. Pl.12(N)(3)(b) at ¶ 1. Neither Oglietti nor Whyte mentioned Mayer's age at the meeting. Def.12(M) at ¶ 24.
D. Mayer's suit
Mayer filed an age discrimination charge with the EEOC on June 10, 1998 listing February 12, 1998 as the earliest date of discrimination. Id. ¶ 25. At her deposition, Mayer stated that she believed she was discharged based on her age because Kemper expected her to retire when she reached 62. Id. ¶ 29. She believed Kemper wanted her to retire because Kemper sent her retirement notices in the mail, although the notices did not tell her to retire. Id. ¶ 29. According to Whyte, all employees nearing retirement age receive the notices, which inform them of their options under Kemper's retirement plans. Id. ¶ 29. Whyte also stated that to her knowledge, no one at Kemper ever asked or suggested that Mayer retire. Id. ¶ 29. Mayer testified at her deposition that no comments were made to her that lead her to believe she was discharged based on her age. Id. ¶ 29. However, she explained that she believed she was discriminated against because "[she] could tell be how [her] performance was done." Id. ¶ 29.
While contending that younger employees were treated more favorably at Kemper, Mayer stated that she does not know the ages of those employees.Id. ¶ 26. She testified only that she thought she could gather their approximate ages by their appearance. Pl.12(N)(3)(b) at ¶ 66. She also stated that she never saw the performance appraisals of other employees in her department and does not know the performance ratings of any other Kemper employees. Def.12(M) ¶ 26.
Mayer testified that Whyte told her that she needed to be flawless to keep her job, and that other employees told her that Whyte called her slow in front them. Pl.12(N)(3)(b) at ¶¶ 67, 69. She stated that Whyte threatened to hit her fingers if she did not stop using a typewriter. Id. ¶ 70. Mayer did not complain about unfair appraisals because Whyte told her not to discuss her performance appraisals with others. Id. ¶ 74.
Kemper contends Mayer was not replaced, but that her duties were simply absorbed by other clerical staff. Id. ¶ 24. Mayer disputes this contention, and asserts that just prior to her discharge, Kemper anticipated discharging her and hired a younger worker to perform Mayer's tasks. Pl.12(N)(3)(a) at ¶ 24. Kemper responds that this employee was hired to replace a different employee who had recently resigned. Def.12(N)(3)(a) at ¶ 72.
I. 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. 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 non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th 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. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 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), cert. denied, 510 U.S. 1121 (1994). This standard is applied with added rigor in employment discrimination cases, where issues of intent and credibility often dominate. Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993) (citations omitted). Although this language could be misconstrued to require heightened review in employment cases, the Seventh Circuit has stressed that "there is no separate rule of civil procedure in employment discrimination cases;" rather, the "added rigor" language means only that "courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Employment discrimination case or not, 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 ADEA prohibits an employer from discharging an employee because of age when the employee is over forty years old. See 29 U.S.C. § 623 (a)(1), 631(a). Claims of age discrimination may be established by direct evidence or through indirect proof under the burden-shifting method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Fuka v. Thomson Consumer Electronics, 82 F.3d 1397 (7th Cir. 1996); Grottkau v. Sky Climber, Inc., 79 F.3d 70 (7th Cir. 1996). Mayer relies on the indirect method. To survive summary judgment, she must show facts supporting a prima facie case of age discrimination and demonstrating that Kemper's proffered reason for her discharge is pretextual. See Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1261-62 (7th Cir. 1993).
Under the McDonnell Douglas framework, after the plaintiff establishes a prima fade case of discrimination, the burden shifts to the defendant to articulate a non-discriminatory reason for discharging the plaintiff. If the defendant does so, then the burden shifts back to the plaintiff to show that the proffered reason is pretextual.
Kemper asserts its dismissal of Mayer was based on her consistently poor job performance. This reason suffices to meet Kemper's burden, see Dale v. Chicago Tribune Co., 797 F.2d 458 (7th Cir. 1986), and Mayer does not argue otherwise. Therefore, this court may proceed directly to the pretext analysis after analyzing the establishment of the prima facie case.
II. PRIMA FACIE CASE
To establish a prima facie case of age discrimination, Mayer must show that: (1) she was in the protected age group [forty years of age or older]; (2) she was performing her job satisfactorily; (3) she suffered an adverse employment action; and (4) younger employees similarly situated to her were treated more favorably or she was replaced by a "substantially younger" worker. Denisi v. Dominick's Finer Foods, Inc., 99 F.3d 860, 864 (7th Cir. 1996) The parties dispute whether Mayer presents sufficient evidence to satisfy the second and fourth elements of the prima facie case.
A. Satisfactory Job Performance
Mayer fails to offer any facts supporting an inference that she performed her duties to Kemper's legitimate satisfaction. The only facts that she does offer relate to what she believes was a "long history of successive favorable Annual Performance Appraisals" received between 1990 and 1997. Mayer paints the situation as one in which she received a few poor reviews in 1990 and 1991 shortly after beginning at Kemper, but improved her performance from 1992 through 1997. She asserts that she received above-standard ratings in 1994 and 1995, and that she received satisfactory ratings in 1996 and 1997. She reasons that Kemper would not have retained her for eight years if she were not a good employee. According to Mayer, Kemper started evaluating her negatively in 1998 only because Kemper wished to discharge her because of her age and to create a pretext for her dismissal.
As an initial matter, this court notes that contrary to Mayer's depiction, Mayer's performance between 1990 and 1997 was not stellar. As detailed in the factual discussion, Mayer's appraisers continually noted deficiencies in her performance throughout her employment. Subsequent reviews noted Mayer's failure to improve upon many of these deficiencies. And Mayer did not contest the vast majority of these criticisms during her evaluations or at her deposition. Rather, she agreed that she needed to rectify many of these problems.
On summary judgment, this court must draw all reasonable inferences in Mayer's favor. So, for purposes of this motion, the court accepts Mayer's characterization of her employment history through 1997. Nonetheless, Mayer's accounting fails to support the satisfactory performance element for two reasons. First, to survive summary judgment, Mayer must show a genuine issue as to material objective facts concerning her performance. Her own assessment of her performance cannot create a genuine issue of fact regarding Kemper's evaluation of her performance. See Denisi, 99 F.3d at 865 (an employer's "own perception of his performance" . . . "does not constitute affirmative evidence that can defeat a summary judgment motion"); Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1114 (7th Cir. 1998) ("an employee's self-serving statements about [her] ability are insufficient to contradict an employer's negative evaluation and do not create a material dispute about the employer's honesty or establish pretext") (citing Gustovich v. ATT Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992))
Second, and more importantly, any satisfactory appraisals received by Mayer prior to the time period of her termination are not relevant. The Seventh Circuit has instructed that an employee cannot satisfy the satisfactory performance element "by showing that her performance was adequate for some period of time during her employment;" rather, "[t]he critical issue is whether she was performing well in her job at the time of her termination." Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1261 (7th Cir. 1993); see also Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1113 (7th Cir. 1998) ("Certainly, earlier evaluations cannot, by themselves, demonstrate the adequacy of performance at the crucial time when the employment action is taken.").
This is especially true here because Kemper underwent significant reorganization in 1997, resulting in a change in Mayer's duties. See Fortier, 161 F.3d at 1113 ("Nor can such evaluations, standing alone, create a genuine issue of triable fact when, as here, there have been substantial alterations in the employee's responsibilities and supervision in the intervening period."). Mayer does not dispute Whyte's evaluation in 1997, just prior to the reorganization, that Mayer's duties were tailored to her strengths. Whyte noted that:
Pauline is a steady worker at all she is comfortable with. She does fall down on the [sic] some of the customer service aspects of the job but I have made adjustments to her workflow and have duties that are more in-tune with her abilities. The abilities that Pauline does have are much needed in this unit so she does continue to be a very viable asset to the unit and the maintaining of standard therein.
Def.12(M) ¶ 15. Thus, prior to reorganization, Mayer's duties were commensurate with her abilities and she was able to perform satisfactorily, although not without criticism. After reorganization, all employees within Mayer's department were forced to take on additional tasks. Mayer was assigned those tasks which her supervisors had previously been able to avoid assigning her. Mayer was unable to adequately perform those tasks, and she did not receive satisfactory reviews. In her first annual performance review following reorganization, Mayer received the lowest possible ranking, a "4." She received below standard rankings in seven areas. Whyte noted Mayer's poor performance in a number of areas and remarked that "we continue to see serious problems re: volume and accuracy and her ability to perform duties expected of a Claim Clerk III" and that "her contribution to the unit's successes are minimal." This remained true despite Whyte's attempts to help Mayer overcome some of her problems. Whyte warned Mayer on three occasions in 1998 that she could be terminated if her performance did not improve. Accordingly, Mayer cannot maintain that at the time of her discharge, her performance was satisfactory. See Denisi, 99 F.3d at 865 (finding that employee "cannot establish that he was performing up to [the defendant's] expectations at the time he was terminated" when, "[a]t the time of his termination, his performance was rated . . . below acceptable standards . . . or . . . marginal").
B. More Favorable Treatment of Younger Employees
Mayer fails to establish any facts supporting the fourth element of a prima facie case, that younger employees were treated more favorably than she. Mayer offers no competent evidence bearing on this element, and she does not argue that Kemper thwarted any attempts to obtain evidence. With respect to the age of her coworkers, Mayer has not proffered any evidence that her coworkers are, in fact, younger. Her only "evidence" on this point is her belief that they are younger. However, Mayer's perception of her coworkers' ages is not relevant; their actual age is.
As to more favorable treatment, Mayer does not advance any facts supporting an inference that her coworkers received more favorable treatment. Mayer relies heavily on the treatment she allegedly received: that Whyte treated her like a child, threatened her, and kept a daily log critical of her performance in 1998 while not criticizing any younger employees in that log. But Mayer fails to show Kemper did not subject younger employees to the same standards. She only speculates that it did not. Mayer stated in her deposition that she did not know the performance of her coworkers and how they were treated respecting their performance. Mayer did not see their performance reviews nor does she know whether they were threatened with discharge. Mayer tries to bolster these factual deficiencies by resort to the O'Brien affidavit. As already explained, the affidavit cannot be considered. Moreover, the O'Brien affidavit does nothing more than mimic Mayer's testimony. It describes the treatment received by Mayer and O'Brien themselves, but offers only unfounded conjecture as to the treatment of other employees. Simply because Mayer and O'Brien did not observe their coworkers being scolded or reprimanded does not mean that such events did not occur. True, it is difficult to prove a negative. But Mayer has not offered evidence of any sort bearing on actual treatment of younger Kemper clerks. III. PRETEXT
Mayer's lack of proof on this element is particularly curious given that Kemper offered to provide Mayer with the performance records of Bensenville clerks hired from January 1995 through the time of Mayer's discharge. See Def. Mot. Sum. J. Ex. 1.
Even if Mayer properly established a prima facie case of discrimination, she must still show that Kemper's proffered reason for her dismissal is pretextual. See Denisi, 99 F.3d at 864. This she does not do. Mayer essentially argues that Kemper's stated reason for her discharge — her poor performance — is "unworthy of credence" and not true. See Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 394 (7th Cir. 1998). To show pretext, a plaintiff must give evidence "tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge." Adreani, 154 F.3d at 394.
Although not treated in the "pretext" portion of her brief, Mayer effectively begins her pretext argument by contending that one of the real reasons Kemper discharged her was its desire to avoid paying her pension. Mayer contends that her pension benefits were about to vest, and Kemper sought to save money by firing her before the pension vested. Mayer characterizes this motive as an "age related reason" that motivated her termination, and therefore violates the ADEA.
Mayer offers no evidence on this point aside from her allegation that Kemper "stood to save money" by terminating her prior to her pension vesting. Even if she offered facts showing Mayer's pension status motivated Kemper, Kemper's consideration of that status does not violate the ADEA. As the Supreme Court has clearly explained,
a decision by the company to fire an older employee solely because he . . . is "close to vesting" would not constitute discriminatory treatment on the basis of age. The prohibited stereotype ("Older employees are likely to be ___") would not have figured in this decision, and the attendant stigma would not ensue. The decision would not be the result of an inaccurate and denigrating generalization about age, but would rather represent an accurate judgment about the employee — that he indeed is "close to vesting."Hazen Paper Co. v. Biggins, 507 U.S. 604, 612 (1993)
In Biggins, the Court reiterated that the Congress designed the ADEA to prohibit the stereotyping of older workers based on their age. Congress sought to force employers to examine an employee's actual productivity rather than assume a lack of productivity simply because of age. The Court explained that liability under the ADEA depends on whether an employee's age motivated the employer's decision, and "it is incorrect to say that a decision based on years of service is necessarily `age based.'" Biggins, 507 U.S. at 611. When factors other than the employee's age, such as an employee's actual lack of productivity, motivate the decision, "the problem of inaccurate and stigmatizing stereotypes disappears." Biggins, 507 U.S. at 611.
Under this framework, the Court directly confronted whether an employee's pension status is effectively the same thing as his or her age and therefore not subject to consideration by employers, or whether pension status constitutes one of those factors, other than age, that employers may legitimately consider. The Court concluded that pension status is the later. While acknowledging that pension status is "typically" correlated with age, the two are "analytically distinct;" an employer could take account of an employee's pension status while, at the same time, not considering that employee's age. See Biggins, 507 U.S. at 611.
Therefore, even if Kemper considered Mayer's pension status (an issue on which Mayer offers no evidence), that does not mean Kemper implicitly considered Mayer's age. Standing alone, consideration of her pension status does not violate the ADEA.
In advancing her pension status argument, Mayer relies on Castleman v. Acme Boot Co., 959 F.2d 1417, 1421 (7th Cir. 1992), which held that "evidence of timing in relation to the vesting of pension benefits can be evidence of age discrimination." But Castleman was decided prior to the Court's decision in Biggins. Given Biggins' lengthy and unequivocal analysis of this issue, Castleman is no longer controlling. See Futrell v. Case, 838 F. Supp. 401, 409 (E.D. Wisc. 1993) ("The holding inCastleman, we note, was effectively rejected by the Supreme Court inBiggins.") (reversed on other grounds, 38 F.3d 342 (7th Cir. 1994))
Mayer's other basis for her claim of pretext is the assertion that her increased workload (and her subsequent performance problems) did not really result from Kemper's reorganization, but were due to a contrivance to create overly-demanding expectations and responsibilities in an effort to ensure her failure and thereby justify her discharge. Mayer offers no facts contradicting Kemper's rationale for her increased duties or supporting her contrivance theory. "Rule 56 requires [Mayer] to produce specific facts that cast doubt upon [Kemper's] stated reasons for its action or raise significant issues of credibility." Rand v. CF Industries, Inc., 42 F.3d 1139, 1146 (7th Cir. 1994). Despite devoting three pages of her brief to crying foul, Mayer simply offers no substantiating facts from which a reasonable trier of fact could find in her favor. The court will not address Mayer's many unsubstantiated allegations, but will discuss only those to which Mayer provides citation to the record.
Mayer first attempts to substantiate her pretext claim by referencing the increase in her workload and the "sudden imposition of immediate needs and requirements" in 1998. But the simple fact of an increase in workload, without more, says nothing about the reasons or motivations behind that increase. Kemper offers evidence that the increase in Mayer's workload resulted from its reorganization. Mayer must do more than posit theoretical rationales for the increase — she must provide some substantiation for those rationales. Second, Mayer cites to Whyte's comment in 1998 that Mayer had shown "signs of stress when handed new projects which are more involved than she normally handles." She argues that Whyte sought to capitalize on her weakness by giving her new and difficult projects. But this again is nothing more than speculation; it is specious to contend that the fact Whyte recognized shortcomings in Mayer's abilities supports an inference that Whyte then sought to exploit those weaknesses. Whyte's observation is not probative of motivation. Finally, Mayer contends that Whyte's ceaseless monitoring and criticism of her performance in 1998 shows that Whyte was bent on seeing her falter. But this also fails. A reasonable trier of fact could not infer that intense scrutiny alone shows a discriminatory intent, especially when that scrutiny is founded upon years of documented performance problems.
The facts of record support only the contrary inference: that Mayer's substandard performance was the real reason for her termination. Mayer does not dispute that Whyte made repeated attempts in 1998 to help her overcome her deficiencies, a fact plainly contradicting the allegation that Whyte wished to see Mayer fail. Mayer was not immediately terminated, but she was warned three times in 1998 that she could be terminated if she did not improve. Kemper did not terminate Mayer on a whim, but only after documenting repeated performance deficiencies. Finally, Mayer did not contest the lion's share of these evaluations, and often noted her need to improve. These uncontested facts create an inference in Kemper's favor. As noted by the Seventh Circuit,
Inferences and opinions must be grounded on more than flights of fancy, speculations, hunches, intuitions, or rumors, and discrimination law would be unmanageable if disgruntled employees . . . could defeat summary judgment by affidavits speculating about the defendant's motives. There would be no summary judgments in age discrimination cases.Rand v. CF Industries, Inc., 42 F.3d 1139, 1146 (7th Cir. 1994). Mayer has not offered any factual basis to support a reasonable inference that Kemper's stated reasons for her discharge are pretextual.
CONCLUSION
The motion for summary judgment is granted. Judgment is entered in favor of defendant Kemper Insurance, Inc. against plaintiff Pauline Mayer.