Opinion
IP 97-0540-C B/S
April 2000
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Kenneth Crow ("Crow"), contends that defendant, Borg-Warner Automotive Diversified Transmission Products Corporation ("DTP"), terminated his employment because of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and in violation of the Indiana Age Discrimination Act, Indiana Code § 22-9-2 et seq. Both parties move for summary judgment. For the reasons discussed below, DTP's motion for summary judgment is GRANTED and Crow's motion for summary judgment is DENIED.
Background
DTP designs and manufactures automotive transmissions and transmission components. Located in Muncie, Indiana, it employs approximately 1800 hourly employees. See Def.'s Statement of Material Facts ("Def. St. Facts") ¶ 2. Plaintiff Crow joined DTP in 1977 and remained so employed until his termination on May 24, 1996. On his dismissal date, Crow was 59 years-old, had approximately 17 years of seniority and, according to Crow, was a "good" employee. See Pl.'s Statement of Material Facts and Evidence/Facts in Support of Summ. J. ("Pl. St. Facts") ¶¶ 17, 18, 20. At all times relevant to this lawsuit, Crow functioned as a Machine Repairman in the Skilled Trades division. His duties included making machine parts and repairing and maintaining machines located throughout the plant. See Crow Dep. at 17; Def. St. Facts ¶¶ 4-5. Employees within the Machine Repairman classification had lockers and stored their tools at a central location, the "Tool Room," even though they physically worked in a variety of areas throughout the plant. Id. The Tool Room is adjacent to the Cutter/Grinder Department, the situs of the event that led to Crow's dismissal. Id.
Crow fails to respond to DTP's statement of material facts as required by local rule 56.1, so we assume that the facts as claimed by DTP, as supported with admissible evidence, are admitted to exist without controversy. See S.D. Ind. L.R. 56.1(g). The two statements of facts that Crow does offer generally fail to comply with local rule 56.1. Crow's January 21, 1998 "Findings of Facts and Conclusions of Law" contains 58 paragraphs, all but one of which (paragraph 2) fails to cite to the record, in violation of local rule 56.1(f), which requires that "[e]ach stated material fact shall be substantiated by specific citation to record evidence." Likewise, paragraphs 1-9 of Crow's January 21, 1998 "Statement of Material Facts and Evidence/Facts in Support of Summary Judgment" cites to the transcript of Crow's July 23, 1996 unemployment compensation hearing before an administrative law judge, who apparently concluded that Crow was eligible for unemployment benefits. Of course, that proceeding is completely independent of this case and we are not charged with reviewing the ALJ's findings, nor are they binding on us. Cf. Ind. Code § 22-4-17-12(h); Astoria Fed. Sav. Loan Assoc. v. Solimino, 501 U.S. 104, 110-11, 111 S.Ct. 2166, 2171 (1991); Mitchell v. Bendix Corp., 603 F. Supp. 920, 922 (N.D.Ind. 1985). Also, Crow fails to respond to DTP's assertion that the transcript of the administrative proceeding is inadmissible; FRE 801(d), in addition to other arguments, potentially provide a basis for admission of prior sworn statements, but Crow fails to advance any such contentions. In any event, the admission of the facts that Crow cites from the administrative proceeding transcript is a moot point, both because we have access to those same facts from other record evidence and because those facts themselves, even when considered, do not alter our conclusion (they provide background information only). The remaining paragraphs in Crow's Statement of Material Facts contain citations to record evidence (albeit some argument and conclusory assertions as well), so we have considered the factual propositions in those paragraphs.
On May 14, 1996, a "homemade explosive device" exploded near a machine in the Cutter/Grinder Department, at a location approximately 20-25 feet from Crow's tool bench. Id. ¶ 6. The "bomb" was not of nuclear or earth-shaking proportions, but it was sufficiently dangerous to injure one worker and damage a machine. It is also apparent that while "explosions" were not widespread at the plant, unidentified employee-pranksters may have lit firecrackers on an unknown number of occasions before this incident. Crow vaguely alludes to prior incidents of "horseplay" when other employees made "bombs," but he fails to provide us with any details, such as what events transpired, if anyone was injured, whether investigation(s) ensued, or if the same decision-makers in this case knew about those unspecified incidents.
Fred Gorin ("Gorin"), Manager of Health Safety, Noel Brown, Captain of Security, and Gerald Poore, a union safety representative, responded to the May 14 incident and met in the Cutter/Grinder Department. Gorin observed that the exploded device consisted of a plastic liter bottle, liquid cleaning solution and balls of aluminum foil. Devices of this type apparently explode after the confined liquid produces sufficient gas pressure to overwhelm its container, eventually erupting and sending the aluminum foil, plastic shards and liquid everywhere. See Crow Dep. at 32-33.
Gorin launched an investigation, which consisted primarily of interviewing employees. The actual details of the investigation and the truth of the witness "statements" that Gorin compiled are not particularly important, except for their use in determining DTP's motive for terminating Crow's employment. The explosion itself occurred between 8 a.m. and 8:30 a.m. Crow had arrived at work before 8 a.m. that morning and left the Tool Room area shortly before the explosion, at approximately 8 a.m., to conduct a machine alignment on the east side of the plant. See Pete Kohler Aff. ¶ 11, Ex. 1 (Crow Aff.). Crow claims that he did not travel through the Cutter/Grinder area on his way to the alignment job. He returned to the Tool Room area at approximately 9:20 a.m., when he asked, "did a bomb go off ?" and stated, according to Gorin, that had he been present at the time of the explosion, he "would have got blamed for it." Id.; Gorin Aff. ¶ 3; Crow Dep. at 31.
Gorin also interviewed Nancy Starr, Jeff Patterson and Hasten Watters, all of whom worked in the Skilled Trades Maintenance Area, located directly adjacent to the explosion site. Id. Starr and Patterson informed Gorin that on the morning of May 14, prior to the explosion, they both had observed Crow with "something" in his hands, "leaning over" near the machine where the explosion soon would occur. Id. Gorin also claims that Watters informed him that although Watters had not seen Crow place the device that exploded on May 14, he previously had seen Crow make similar explosive devices in the plant. Likewise, "several" other unidentified employees "speculated" when being interviewed by Gorin that Crow was responsible for the incident. Id. Gorin testified that no other employee's name surfaced during his investigation on the morning of May 14, 1996. Id.
Crow does not advance a hearsay objection to what Patterson, Starr, Watters or any other employee told Gorin. In any event, DTP does not offer the statements for the truth of the matters asserted. On the contrary, the central issue in this lawsuit pertains to whether DTP dismissed Crow because it honestly suspected that Crow was involved in the explosion. Even if these statements are completely false, as long as DTP believed them and discharged Crow because of its honestly-held, but perhaps inaccurate, suspicions, Crow's age discrimination claim must fail.
Gorin reported to Pete Kohler, Vice President of Human Resources, and informed him of the results of this preliminary investigation and of Crow's status as a suspect. Id.; Kohler Aff. ¶ 4. (Kohler would be the primary decision-maker responsible for Crow's dismissal.) Kohler testified that hourly production and maintenance employees at DTP are unionized and subject to a collective bargaining agreement. See Kohler Aff. ¶¶ 2-3. Accordingly, employees charged with serious rule violations generally are suspended pending a review, after which DTP conducts a Disciplinary Board meeting with the employee and his/her union representatives, where the three-member Board renders a final disciplinary decision. Id.
On the afternoon of May 14, Kohler, Gorin and Glen Eckelman, Director of Labor Relations, met with Crow and his union representatives and suspended him pending further investigation. During that meeting, Crow denied any responsibility for the explosion, claiming that two other employees, Darrell Forshee (age 59) and John Craig (age 50), were to blame. Crow claims that before he left the Tool Room area around 8 a.m. to complete his alignment job, Craig asked him for aluminum foil, which is used for a variety of purposes throughout the plant, such as for work-related tasks (e.g. creating gaskets) or for such personal uses as cooking meals and snacks. See, e.g., Pl. St. Facts ¶ 24. Of course, aluminum foil constituted one element of the explosive mixture as well. Thus, based on his conversation with Craig, which we assume actually occurred when construing the facts in Crow's favor on summary judgment, Crow believed that Craig and (somehow) Forshee were the responsible parties. Crow informed Kohler of his suspicions about Craig and Forshee.
Kohler decided to suspend Craig and Forshee based on Crow's allegations, even though Gorin's investigation had not revealed any suggestion of their involvement. On the afternoon of May 14, Kohler, Gorin and Eckelman conducted suspension meetings with Forshee, Craig and their union representatives. During their meeting with Forshee, Forshee claimed that at least twice while playing cards, he had seen Crow throw homemade explosive devices (in liter bottles) onto the plant roof above supervisors' offices. Forshee also claimed that on one occasion Crow had asked him if he would purchase ingredients to make other explosive devices if Crow provided Forshee with a list of the necessary ingredients. See Kohler Aff. ¶¶ 6-9; Gorin Aff. ¶¶ 5-7.
John Craig stated during his suspension meeting that he previously had observed Crow throw these types of explosive devices onto the roofs of supervisors' offices. Id. Also on May 14, Kohler received a "tip" that other unexploded devices might be found on the internal office roofs, so security conducted a search and recovered two such devices. It is unclear how long the objects were on the roof, but they were inactive, had not exploded and appeared dirty and dusty. See Kohler Aff. ¶ 9.
On May 24, 1996, Crow and his union representatives, Mike Ailes, Larry Bradburn, and Don Hobbs, attended a Disciplinary Board meeting on the charge of "[e]ngaging in activities which endanger the health and safety of fellow employees and damage to property of the company." The Disciplinary Board consisted of Kohler, Gorin and Eckelman. See Kohler Aff. ¶ 10. During the meeting, Crow reiterated his innocence, claiming that he was being falsely accused of committing a practical joke that went too far. He also stated that Craig was the culpable party, contending that Craig made the bomb and had asked him for aluminum foil prior to the explosion. Crow presented the Board with a typed statement/affidavit denying any involvement in the explosion, speculating in the statement that Darrell Forshee essentially was attempting to frame him because "[Forshee] knew I knew he was the one who set the bomb in the Grinding Department." See Kohler Aff. ¶ 11, Ex. 1 (Crow May 23, 1996 Affidavit). Crow also claimed in his typed statement that he had left his work area (adjacent to the explosion location) at 8 a.m. (shortly before the explosion) and returned after the explosion at 9:20 a.m., when he asked Joe Brammer, "[d]id a bomb go off ?" Id.
The Board reviewed Crow's statement, but did not feel compelled to disclose to Crow the confidential details of its investigation, most notably the identities of Jeff Patterson and Nancy Starr and their eyewitness accounts of Crow's presence near the explosion site shortly before the incident. Kohler did ask Crow if he ever had concocted homemade explosive devices and placed them in the plant, but Crow refused to answer. Id. ¶¶ 12-14. The Board members conferred, agreeing with Kohler's opinion that Crow had made explosive devices in the plant in the past and that he likely was responsible for the May 14 incident. See Kohler Aff. ¶ 13; Gorin Aff. ¶ 9. Kohler informed Crow during the meeting that his employment was terminated for engaging in "activities which endangered the health and safety of fellow employees and damaged the property of the Company." Id. DTP subsequently returned Forshee and Craig from suspension.
After Crow's dismissal, DTP did not hire a replacement, transfer any employees to cover his position, or post his position as open. The remaining machine repair employees absorbed Crow's duties since the company was not in hiring mode. However, the union did file a grievance on Crow's behalf in an attempt to secure his reinstatement, which DTP denied. The union elected not to take the grievance before an arbitrator, foregoing that apparent option under the collective bargaining agreement. See Kohler Aff. ¶ 15.
Crow visited the Muncie City-County Building, apparently on the same day as his May 24, 1996 dismissal, where he met with a representative from the Muncie Human Rights Commission, Billie Joan Burkett. See Def. St. Facts ¶ 23; Crow Dep. at 60-62 (Def.'s Ex. 5, Crow's EEOC charge). Burkett suggested to Crow that DTP may have dismissed him because of his age. Id. Accordingly, Crow filed an EEOC complaint on May 24, 1996. Id. Crow testified that, prior to Burkett's suggestion of age discrimination, he did not believe that he had been dismissed because of his age. See Crow Dep. at 62. On January 21, 1997, the EEOC issued Crow notice of his right to sue, and this litigation ensued on April 4, 1997.
On July 17, 1998, we dismissed this action with prejudice in light of plaintiff's counsel's several failures to comply with orders of the court, including briefing schedules, deadlines for responses to orders to show cause, and an order to appear at a June 5, 1998 pretrial conference. On September 21, 1998, we granted plaintiff's motion to reconsider that dismissal and re-opened this case despite counsel's "pattern of neglect and inattention" to his client's case. However, we imposed sanctions on plaintiff's counsel "to serve both as an offset to the expenses which defendant has had to bear in conducting what amounts to a one-sided conversation with the court and as a reminder to [plaintiff's counsel] that he remains obligated to apply care and diligence in the conduct of his clients' litigations which have been brought in this court." As we requested, defendant subsequently submitted a computation of costs associated with plaintiff's counsel's derelictions. We have reviewed that submission, and find DTP's cost calculation of $1,089 reasonable under the circumstances; accordingly, we GRANT DTP's request for a cost award in that amount.
Discussion A. Summary Judgment Standards
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); Eiland v. Trinity Hosp.,150 F.3d 747, 750 (7th Cir. 1998).In considering a motion for summary judgment, any inferences drawn from the facts must be viewed in the light most favorable to the non-moving party, but only reasonable inferences need be made. See Mills v. Health Care Serv. Corp., 171 F.3d 450, 459-60 (7th Cir. 1999). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). Nevertheless, only issues of fact that could affect the outcome of a case are "genuine" such that they may save a case from summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). When summary judgment is sought in an employment discrimination case, as here, the criteria associated with summary judgment must be applied with "added scrutiny because matters of intent and credibility are crucial issues." Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994); Drake v. Minnesota Mining Mfg. Co., 134 F.3d 878, 883 (7th Cir. 1998). However, "employment discrimination cases are not governed by a separate set of rules . . . they remain amenable to disposition by summary judgment so long as there is no genuine dispute as to the material facts." Patterson v. Chicago Assoc. for Retarded Citizens, 150 F.3d 719, 723 (7th Cir. 1998) (internal quotations omitted) (quoting Giannopoulos v. Brach Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997)). Thus, if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but also required. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989).
B. ADEA Claim
Crow advances a disparate treatment discrimination claim, contending that Kohler and the other members of the Disciplinary Committee improperly terminated his employment because of his age (59), in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. DTP responds that Crow has failed to demonstrate a prima facie case of age discrimination since it did not treat any substantially younger employees more favorably than Crow. DTP also contends that regardless of Crow's burden to prove a prima facie case, it has advanced a legitimate, non-discriminatory reason for Crow's dismissal, namely its belief that Crow was responsible for the May 14 explosion. We agree with DTP and conclude that Crow never comes close to establishing that DTP's proffered reason for dismissing him was a pretext for age discrimination.
Crow also brings an action pursuant to the Indiana Age Discrimination Act, IC § 22-9-2, the Indiana counterpart to the federal ADEA. DTP moves to dismiss this state law claim, contending that the Indiana statute expressly provides that it does not apply to employers subject to the federal ADEA, an argument to which Crow fails to respond. See IC § 22-9-2-1-2 ("`Employer' . . . does not include: . . . (2) a person or governmental entity which is subject to the federal Age Discrimination in Employment Act."). The parties agree that DTP is subject to the federal ADEA. Thus, we GRANT DTP's motion for summary judgment on Crow's state law age discrimination claim.
The ADEA makes it "unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1).
Age discrimination under the ADEA, like other forms of discrimination under Title VII or the ADA, may be established either by direct evidence (i.e. "I fired you because of your age," see Robin v. Espo Engineering Corp., 200 F.3d 1081, 1088 (7th Cir. 2000)) or by the indirect burden shifting method conceived in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). See Weigel v. Target Stores, 122 F.3d 461, 464-65 (7th Cir. 1997) ("In disparate treatment claims [under the ADA], the McDonnell Douglas burden-shifting framework commonly employed in Title VII and ADEA actions is generally appropriate.").
Crow asserts without support that direct evidence establishes his claim of age discrimination. However, he never offers the "smoking gun" typical of a direct-evidence discrimination case. See Robin, 200 F.3d at 1088 ("Because employers usually are careful not to offer smoking gun remarks indicating intentional discrimination, the Supreme Court established the burden shifting approach as a means of evaluating indirect evidence of discrimination at the summary judgment stage."). Crow does not produce evidence of verbal remarks from any DTP employee suggesting age as a reason for his dismissal. Nor does he present any documents to support his speculation that age motivated the Disciplinary Committee to terminate his employment. In fact, Crow testified that when he visited the Muncie Human Rights Commission directly after his termination, he did not believe that DTP had dismissed him because of his age, an unsurprising fact given the absence of any direct evidence of age discrimination. Crow even admits in his memorandum in support of summary judgment that "[t]here were no statements that were hositile [sic] to age, particularly the Plaintiff's age in the instant matter." Pl.'s Mem. Supp. Summ. J. at 3; see Crow Dep. at 79. Thus, despite Crow's hollow protestations to the contrary, his only hope of demonstrating intentional age discrimination in this case rests on the indirect burden-shifting approach of McDonnell Douglas.
Under the McDonnell Douglas framework, Crow bears the burden of demonstrating, by a preponderance of the evidence, a prima facie case of age discrimination. See Wilson v. AM General Corp., 167 F.3d 1114, 1119 (7th Cir. 1999). To demonstrate this prima facie case and to create a presumption of intentional age discrimination, Crow must present evidence of the following: (1) he was within the protected class (over 40); (2) he was performing his job to DTP's legitimate expectations; (3) he was discharged; and (4) DTP treated similarly situated, substantially younger employees more favorably, or other such evidence that indicates that it is more likely than not that his age was the reason for the discharge. See Robin, 200 F.3d at 1090; Pitasi v. Gartner Group, Inc., 184 F.3d 709, 716 (7th Cir. 1999).
If Crow succeeds in establishing his prima facie case, only then does the burden shift to DTP to come forward with evidence of a legitimate and non-discriminatory reason for the employment decision. See Sattar v. Motorola, Inc., 138 F.3d 1164, 1168-69 (7th Cir. 1998). If DTP does so, the inference of discrimination dissolves and Crow must prove, by a preponderance of the evidence, that DTP's proffered reasons are false and only pretexts for discrimination. See Crim v. Board of Educ. of Cairo Sch. Dist., 147 F.3d 535, 540 (7th Cir. 1998); Robin, 200 F.3d at 1088. "The ultimate question is `whether the same events would have transpired if the employee had been younger than 40 and everything else had been the same.'" Wilson, 167 F.3d at 1120 (quoting Gehring v. Case Corp., 43 F.3d 340, 344 (7th Cir. 1994) (citations omitted)).
Pretext is much more than a mistake, however, it is "a lie, specifically a phony reason for some action." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). Pretext may be established directly with evidence that the employer was more likely than not motivated by a discriminatory reason, or indirectly by evidence that the employer's explanation is not credible. See Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1039 (7th Cir. 1993) (citations omitted). Indirect evidence of pretext showing that an employer's proffered reasons are not credible may be made by demonstrating that the reasons are factually baseless, were not the actual motivation for the action, or were insufficient to motivate the action. See Jackson v. E.J. Brach Corp., 176 F.3d 971, 983-84 (7th Cir. 1999); see also King v. Preferred Technical Group, 166 F.3d 887, 892 (7th Cir. 1999) ("[T]he plaintiff must proffer significantly probative admissible evidence showing that the employer's articulated reason for the discharge was a pretext for discrimination."). "Because a Title VII claim requires intentional discrimination, the pretext inquiry focuses on whether the employer's stated reason was honest, not whether it was accurate." Helland v. South Bend Community Sch. Corp., 93 F.3d 327, 330 (7th Cir. 1996). The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff "remains at all times with the plaintiff." DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797-98 (7th Cir. 1995) (internal quotation marks and citations omitted).
In this case, we need not dwell long on Crow's prima facie case. There is little dispute that Crow has met the first three prima facie prongs: he is over 40, he performed his job satisfactorily (at least according to the information DTP had prior to the May 14 explosion), and he was discharged. However, Crow virtually ignores DTP's contention that it did not treat a substantially younger employee more favorably than Crow. Crow does not dispute (or provide any evidence to contradict) the fact that DTP did not hire any employee, much less a younger employee, to assume his job responsibilities. Crow, who bears the burden of establishing the fourth element, fails to adduce any evidence regarding the ages of the existing employees who assumed his job responsibilities, nor does he identify any younger, remaining employee who was similarly situated. Crow assumes that because of his comparatively high seniority at DTP (17 years of seniority), a younger employee must have replaced him, but seniority and age are fundamentally distinct concepts, with seniority proving an unhelpful distraction in the absence of any evidence regarding age. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 1707 (1993) ("Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily `age based.'"). This is not to say that establishing a prima facie case of discrimination is onerous (it shouldn't be), or necessarily difficult in this particular case. But Crow shoulders the responsibility for his anemic treatment of the issue both in his summary judgment submissions and apparently in his discovery strategy as well, and we are under no obligation to scour the record and advocate on his behalf. See Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995) ("[J]ust as a district court is not required to `scour the record looking for factual disputes,' it is not required to scour the party's various submissions to piece together appropriate arguments. A court need not make the lawyer's case.") (internal citations omitted).
The one argument that Crow does advance pertains to DTP's treatment of John Craig, one of the two other employees that DTP suspended pending its investigation of the May 14 explosion. Crow contends that DTP treated Craig more favorably because it reinstated Craig after his dismissal.
Assuming that Craig's suspension and subsequent re-instatement qualifies as "more favorable" treatment, it is undisputed that Craig, age 50, was nine years younger than Crow and also within the protected age group. Our circuit repeatedly has defined the "substantially younger" requirement under the fourth prong of an ADEA prima facie case to mean "at least a ten-year age difference; any age disparity less than ten years is `presumptively insubstantial.'" Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 676 n. 1 (7th Cir. 1997) (quoting Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 892 (7th Cir. 1997)); see Pitasi v. Gartner Group, Inc., 184 F.3d 709, 717 (7th Cir. 1999) (finding that eight-year age disparity between 52 year-old plaintiff, who defendant terminated as part of a reduction-in-force, and a younger employee who partially assumed his duties was "not significant enough, under the law of this circuit, to create a reasonable inference of age discrimination."). The lack of a presumptively significant age disparity between Crow and Craig, and the complete absence of record evidence suggesting that Crow's age played a role in his dismissal, combine to hamstring Crow in meeting his prima facie burden and establishing an inference of age discrimination simply because DTP reinstated Craig after its investigation.
Darrel Forshee, the second suspended employee who DTP reinstated after Crow's dismissal, was the same age as Crow (59).
Our conclusion would not change, however, even if Crow had succeeded in establishing a prima facie case of age discrimination. Crow's ADEA claim fails for a more compelling reason in our view; DTP's legitimate, non-discriminatory reason for dismissing Crow stands entirely unscathed. DTP claims that it dismissed Crow because the Disciplinary Committee honestly believed that Crow was responsible for the May 14 explosion and that he previously had made explosive devices in the plant. Although Crow's summary judgment submissions border on incoherence (his memorandum in support of summary judgment resembles a mere sketch of an outline, while his response brief in opposition to summary judgment consists of unorganized stream-of-consciousness ramblings), it is clear that Crow essentially attempts to establish pretext by challenging the sufficiency of DTP's investigation of the May 14 explosion, claiming that the evidence against him was "minimal, fragmented, and inconclusive." See Pl.'s Resp. Summ. J. at 4, 5-6. However, this argument leads Crow straight into the lion's den, for our circuit has made it abundantly clear that "the pretext inquiry focuses on whether the employer's stated reason was honest, not whether it was accurate." Helland v. South Bend Community Sch. Corp., 93 F.3d 327, 330 (7th Cir. 1996); Crim, 147 F.3d at 541 ("Even if [defendant's] reasons for [taking the adverse action] were mistaken, ill-considered or foolish, if the [defendant] honestly believed in those reasons then pretext has not been proven."). The employer faces no burden of proof requirements so long as its conclusion is honestly held.
Specifically, Crow faults DTP for not dusting for fingerprints at the explosion scene, claiming that if DTP truly considered the incident serious, it would have searched for prints and filed criminal charges and a police report. He also contends that DTP should have done more than rely on witness statements which, in his view, were insufficient to establish his culpability for the explosion.
In Kariotis v. Navistar International Transportation Corporation, 131 F.3d 672 (7th Cir. 1997), supra, the court rejected the precise pretext argument that Crow now advances. In Kariotis, the defendant-employer discharged the 57-year-old plaintiff after it decided that she had fraudulently accepted disability benefits following knee replacement surgery. Suspicious that plaintiff may have fabricated her entitlement to benefits, defendant hired private investigators to videotape her movements on three off-duty occasions, which revealed plaintiff engaging in various mundane activities such as walking, driving and bending. The defendant concluded upon reviewing the videotape that, in its non-medical opinion, the plaintiff was neither disabled nor physically impaired. The defendant refused to solicit the opinions of the plaintiff's doctor, who had recommended that she undergo additional knee treatments, nor did defendant insist on a second opinion by having its own physician examine the plaintiff. Despite its eventual review of the plaintiff's doctor's opinion that the disability fraud charge was "preposterous" given the plaintiff's physical condition, the defendant proceeded with plaintiff's termination. Id. at 675.
The court recognized that although the defendant's investigation "left something to be desired" and "hardly look[ed] world-class," the plaintiff's "energy [was] misspent by attacking the company's decisional process." Id. at 677. The court acknowledged that the defendant may have been careless in checking its facts before firing her, but found that no evidence suggested that the company approached her case differently than others: "While the decision arguably was wrong, she has not shown it was based on illegal discrimination." Id. at 677. The court concluded:
In the end, we are left with Kariotis' theory that the company's investigation was so impulsive and shoddy that it reeks of discriminatory intent — a theory that we rejected in [Pollard v. Rea Magnet Wire Co., Inc., 824 F.2d 557, 559 (7th Cir. 1987)] on the ground that a federal court is not a court of industrial relations, and one which we again reject today. This is probably the classic case where a court must observe its limitations and "not sit as a super-personnel department that reexamines an entity's business decisions. No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers," the laws barring discrimination do not interfere. The same principle dooms each of Kariotis' discrimination claims under the ADA, ADEA and ERISA.
Id. at 678 (internal citation omitted).
Likewise, in this case, DTP's investigation, while certainly not as thorough as it could have been, yielded determinative results in its opinion. Pete Kohler testified that a number of factors pointed the investigation in Crow's direction: (1) information from employees that they had seen Crow the morning of the explosion with something in his hands and kneeling down in the area where the explosion later occurred, (2) Crow's statement when he arrived on the scene that he was relieved he was not present at the time of the explosion because "he would have been blamed," (3) Crow's statement when he arrived on the scene, "What happened, did a bomb go off?" which Kohler considered a "curious" statement from someone who supposedly did not know what had happened, (4) the proximity of Crow's work station to the site of the explosion (20-30 feet), (5) John Craig and Darrell Forshee's independent statements that they previously had observed Crow throwing devices on the plant roof, after which a security guard searched for and found two such devices, (6) Forshee's statement that Crow previously had asked him to purchase the ingredients for making such a device, (7) Crow's refusal to answer Kohler's question regarding whether he had ever made such devices and placed them in the plant, and (8) Crow's written, May 23 statement/affidavit, which Kohler believed demonstrated that Crow was familiar with the process and ingredients for making a device like the one that exploded on May 14. See Kohler Aff. ¶ 14.
Based on all these factors, DTP thought that it had its man, with one factor weighing most heavily in support of that conclusion — the two eyewitness accounts of Crow with "something" in his hands, "leaning over" near the machine where the explosion soon would occur. It is possible that DTP was wrong in its conclusion, as a number of innocent explanations potentially could explain both Crow's presence in the area and the convergence of factors that led DTP to suspect Crow's involvement in the explosion. Perhaps Nancy Starr and Jeff Patterson's observations were inaccurate, and perhaps Hasten Watters, who stated that he observed Crow make such devices in the past, was simply mistaken. Maybe Crow is correct that Darrell Forshee and John Craig, the other two suspended suspects, conspired to lie about their alleged observations of Crow throwing similar explosive devices on the plant roof. Perhaps Crow refused to answer Peter Kohler's questions about whether he had made explosive devices in the past for some other reason than because he did not want to confess to actually having done so.
While all these suppositions may be true, Crow never offers any evidence that Pete Kohler (and the other Disciplinary Committee members) disbelieved Crow's assertions of innocence because of his age. For instance, Crow offers no comparative evidence that Pete Kohler, who had worked at DTP for only a year prior to the explosion, would have been more diligent or careful in investigating a similarly situated, substantially younger employee (or that he had a prior record of such disparate treatment). While a younger employee (Craig) and an employee of the same age (Forshee) were also suspended based solely on Crow's allegations that they were the true culprits, no other employees either observed them near the explosion area or claimed that they had ever manufactured these homemade explosive devices in the past. We have no evidence suggesting that Pete Kohler or Fred Gorin are lying when they claim that Crow emerged as the prime suspect because of what they learned through witness statements and interviews.
Crow does claim that Craig asked him for aluminum foil prior to the explosion, which he contends proves that Craig actually was responsible for the explosion, although it is undisputed that foil was utilized for a variety of purposes throughout the plant. Crow offers no evidence to suggest that had Kohler amassed the same information during the investigation about Craig or Forshee as he did about Crow (e.g. eyewitness accounts placing Craig or Forshee at the explosion scene) he would have treated them differently and taken some other action against them short of termination.
It was DTP's prerogative to conduct its internal investigation in the manner it saw fit, and to believe the inculpating witnesses that it interviewed, provided that Crow's age was not the real reason for his termination. Crow fails to offer even a shred of evidence either undermining Kohler's honest belief that Crow was responsible for the May 14 explosion or establishing that Kohler's conclusion after the investigation was a pretext for age discrimination. Simply put, nothing in the record demonstrates that Crow's age resulted in DPT's decision to terminate his employment. Hence, even after construing the evidence in Crow's favor, and in accordance with Kariotis, we must GRANT DTP's motion for summary judgment on Crow's ADEA claim and DENY Crow's motion for summary judgment.
Conclusion
For the reasons discussed above, DTP's motion for summary judgment on Crow's ADEA claim is GRANTED, while Crow's motion for summary judgment is DENIED. We also GRANT DTP's motion for summary judgment on Crow's state law age discrimination claim, and, as previously explained, we GRANT DTP's request to recover $1,089 in costs from plaintiff's counsel.
It is so ORDERED this day of April 2000.
JUDGMENT
As explained in the accompanying Entry in the above-named cause, judgment is hereby entered in favor of Defendant, Borg-Warner Automotive Diversified Transmission Products Corporation, and against Plaintiff, Kenneth Crow.It is so ORDERED this day of April 2000.