Opinion
CAUSE NO. IP 01-993-C H/K
September 18, 2002
ENTRY ON DEFENDANTS' SUMMARY JUDGMENT MOTIONS
Plaintiff Calvin G. Latner has sued his former employer for age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Latner worked for Defendant Delta-HA, Inc., and its predecessors in various capacities over a period of about seven years, working most recently as a regional sales manager. In April 2001, Delta-HA merged with another company to form HA-International, LLC. ("HAI"). During the merger, Delta-HA terminated Latner's employment and HAI did not rehire him. Latner contends that this adverse action was the result of age discrimination. Defendant Delta-HA contends that it terminated Latner because it terminated all sales positions. Defendant HAI contends that it did not rehire Latner because he was less qualified for the sales position than another candidate.
Defendant HAI has moved for judgment on the pleadings or in the alternative for summary judgment. Defendant Delta-HA has moved for summary judgment. In addition, the defendants have moved to strike several affidavits submitted by plaintiff in opposition to the summary judgment motion.
As explained below, the court grants defendants' motions for summary judgment. Though Latner has established a prima facie case of age discrimination, he has not produced evidence that would permit a reasonable jury to conclude that defendants' stated reasons for not rehiring Latner after the merger were pretexts for age discrimination. In addition, the court denies the defendants' motion to strike.
Pursuant to Federal Rule of Civil Procedure 12(c), the court will treat defendant HAI's motion for judgment on the pleadings as one for summary judgment.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir. 2000).
On a motion for summary judgment, the moving parties must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the parties believe demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving parties have met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir. 1999). The existence of "some alleged factual dispute between the parties," or "some metaphysical doubt," however, does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).
Although intent and credibility are often critical issues in employment discrimination cases, there is no special version of Rule 56 that applies only to them. See, e.g., Alexander v. Wisconsin Dep't of Health and Family Serv., 263 F.3d 673, 681 (7th Cir. 2001); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In an employment discrimination case, as in any case, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact. See Haugerud v. Amery School Dist., 259 F.3d 678, 689 (7th Cir. 2001) (same standard applies to any type of case).
Motion to Strike
Defendants have filed a motion to strike the declarations of Steve Baker, Tim Wade, Larry E. Critzer, and Thomas K. Smith pursuant to Federal Rule of Civil Procedure 37(c)(1). Under Rule 37(c)(1), a party who fails to amend a prior response to discovery as required by 26(e) without substantial justification is not "permitted to use as evidence at a trial, at a hearing, or on a motion, any witness or information not so disclosed," unless such failure is harmless.
The court denies the motion to strike. In responding to a motion for summary judgment, a party is not limited to obtaining evidence from only those witnesses previously identified in discovery. Even after the close of formal discovery, a party may keep digging informally for additional evidence, and especially for rebuttal and impeachment evidence. In this case, the affidavits in question were offered, at least in substantial part, in an attempt to rebut and impeach testimony from defendants' witnesses. And if there were to be a trial in this case, prejudice to the defendants could be avoided by giving them an opportunity to take depositions of the new witnesses.
Undisputed Facts
For purposes of defendants' summary judgment motions, the following facts are either undisputed or reflect the record in the light reasonably most favorable to Latner, the non-moving party.
Prior to his termination, Calvin Latner worked for Delta-HA and its predecessor, Delta Resins and Refractories, Inc., for about seven years. Delta-HA is engaged in the foundry business and produces the resins and refractory coatings used in casting molten metal. Latner joined the company in May 1994 as a coatings technical service representative. He assisted territory and customer service salesmen with on-site casting problems. Latner was then promoted to regional sales manager of Central Indiana in 1997. In this capacity, Latner worked both to convert foundries from using competitors' products to using Delta-HA products and to maintain Delta-HA's current customers. Performing these responsibilities requires technical expertise because actual sales are determined by foundry production. Pl. Res. at 4. The sales manager must monitor the customer's production to ensure that the cast line runs efficiently, with minimal clean-up and acceptable scrap. Id. at 5.
Plaintiff's brief in opposition to summary judgment, entitled "Plaintiff's Pretext Response to Summary Judgment," includes a jurat in which plaintiff Latner affirmed under penalty of perjury that "all statements that I made in Plaintiff's Pretext Response to Summary Judgment are true and [are] based upon my personal knowledge." The court assumes that the statements in question are those followed by the letters "SS." The result is a confusing document that shifts between the first and third person, so that Latner's testimony takes the form of various assertions sprinkled through a larger document. This confusing presentation also leaves room for Latner, if he were questioned about it later, to deny one or more of those assertions. Although this presentation is not recommended, the court has nevertheless considered those statements in the brief followed by "SS" as testimony from Latner.
Latner was initially supervised by John Alex Otte, Jr., who reported to Rick Smith, then Delta-HA's vice-president of sales. Latner testified that Otte made derogatory comments to Latner "all the time," calling Latner "old fart" and "old man." Latner Dep. at 53. Latner also testified that on one occasion, Otte remarked, "Well, why don't you go ahead and retire? And then I can have your job. You've got the best job in the whole industry." Id. In May 2000, Gary Strehl became Latner's supervisor.
During the time Latner worked as a sales manager, he helped Delta-HA secure the coatings and resins business of Navistar, a large manufacturer of engines and engine blocks in Latner's assigned sales territory. Navistar was one of the largest foundries located in Latner's territory, and it quickly became one of Delta-HA's top three customers.
Despite winning the Navistar account, Delta-HA began experiencing a decline in business in late 2000. As a result, Rick Smith considered a potential reduction in force and also began discussions with Borden Chemical concerning a joint venture. Smith wrote a memorandum, dated February 5, 2001, that detailed the proposed staff reductions and included the following description:
Cal Latner (age 59) Sales. Cal calls on Central Indiana (i.e. Navistar, Grede New Castle, Golden Foundry, etc.). Cal worked for Borden prior to coming to Delta-HA as a coatings expert. He worked for Bill Adamson, however, this did not work out so we moved him into Sales approximately 3 years ago. He does a good maintenance job, but not aggressive enough for sales. With company approximately 6 years.
Pl. Ex. 3. Two months later Delta-HA and Borden joined forces to form HAI, a company that would manufacture three product lines: resins, refractory coatings, and resin-coated sand. Both companies reduced their respective workforces to accommodate the joint venture. Smith testified that Delta-HA eliminated all positions in sales, technical service, and in research and development. Smith Dep. at 58-59. Latner received a letter from Smith terminating his employment with Delta-HA and offering him a severance package. Pl. Ex. 4 (letter dated March 29, 2001). At the time of his termination, Latner was 59 years old.
Smith, now vice-president of HAI, and Keith McLean, president and CEO of HAI, began selecting employees for the new company. They filled HAI's vacancies by selecting individuals from the pool of employees terminated by Borden and Delta-HA. McLean Dep. at 7-8. Smith and McLean considered two individuals from Delta-HA for HAI's Central Indiana sales territory: Robert Stransky, age 42, and plaintiff Calvin Latner, age 59. Smith Dep. at 24-25. Because Smith knew both men, he ultimately decided who would be hired. Id. at 57; McLean Dep. at 18-19. Smith testified that he chose Stransky because, based on his first-hand knowledge working with both men, he felt that Stransky "had the better strengths in sales and product knowledge to do the job we wanted to do in the new company." Smith Dep. at 57. Smith further testified that neither Otte nor Strehl had any input into the decision to hire Stransky over Latner. Id.
Other facts are noted below in the court's discussion of the issues, keeping in mind the standard for considering evidence on a motion for summary judgment.
Discussion
The ADEA protects individuals 40 years of age and over from age-based discrimination, making it "unlawful for an employer . . . to 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). Because Latner does not contend he has any direct evidence of age discrimination linked to his termination by Delta-HA or to HAI's decision not to rehire him, the court analyzes his claim under the three-step pattern of indirect proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Gordon v. United Airlines, Inc., 246 F.3d 878, 885 (7th Cir. 2001); Wade v. Lerner New York, Inc., 243 F.3d 319, 322 (7th Cir. 2001) (applying the McDonnell Douglas framework to ADEA case where plaintiff presented no direct evidence of age discrimination); see also Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000) (assuming that the McDonnell Douglas framework applied to an ADEA claim and recognizing that the federal circuits have employed framework in ADEA cases given their sensitive and difficult nature and lack of eyewitnesses).
Under this method of proof, Latner must first establish a prima facie case of age discrimination by producing evidence tending to show that: (1) he belongs to the protected class (age 40 or over); (2) he was performing his job satisfactorily; (3) he suffered an adverse employment action; and (4) defendants treated similarly situated but substantially younger employees more favorably than Latner. See Gordon, 246 F.3d at 886; see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (recognizing that the prima facie case requires evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion; plaintiff must show discrimination in relation to a substantially younger employee and not someone outside the protected class to raise an inference of discrimination).
I. Prima Facie Case
In support of summary judgment, defendants contend that Latner cannot establish a prima facie case because no similarly situated younger employee was treated more favorably than Latner. Defendants argue that because Delta-HA terminated all of its sales employees when it formed a joint venture with Borden Chemical, they were not treated any better than Latner. Similarly, defendants argue that because HAI never employed plaintiff, there is no similarly situated, younger employee who was treated better than Latner.
This argument invites the court to ignore reality. The argument treats the decision to terminate Latner and the decision not to rehire him for the new joint venture as if they bore no connection to each other. The court does not agree. Evidence indicates that the decisions to terminate Latner's employment and not to rehire him were related decisions made in the context of a joint venture by a decision-maker common to both entities. McLean testified that Latner's termination "was concurrent with the creation of the merger" and that the decision to hire Stransky over Latner was made before the creation of HAI, sometime in February or March 2001. McLean Dep. at 6-7. Moreover, Smith ultimately made both decisions. As president and CEO of Delta-HA, Smith terminated Latner's employment, and as vice-president of HAI, Smith decided to hire Stransky over Latner. Pl. Ex. 4 (letter dated March 29, 2001); McLean Dep. at 18-19.
As a result of the creation of the joint venture, Stransky was a similarly situated younger employee who was treated better than Latner. HAI hired 42 year old Stransky over 59 year old Latner. The fact that, at age 42, Stransky himself is in the class protected by the ADEA is immaterial. It is enough that he is substantially younger than Latner. Miller v. Borden, Inc., 168 F.3d 308, 313 (7th Cir. 1999) ("The younger employees `need not be outside the protected class, i.e. under the age of forty'. . . but should be substantially — i.e., at least ten years — younger than the terminated employee."), quoting Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 892-893 (7th Cir. 1997).
For purposes of summary judgment, Latner has established the remaining elements of a prima facie case. Latner is in the class protected by the ADEA, and suffered an adverse employment action. In addition, Latner has come forward with evidence that he was performing his job satisfactorily. In January 2001, Latner's supervisor rated his overall performance as "successful." Pl. Ex. 2. Furthermore, in the section of the evaluation form marked "Where Accomplishments/Performance Fell Short/Improvements Needed," the supervisor wrote no comments and entered only a question mark. Id. Smith's own memorandum concerning staff reductions states that Latner "does a good maintenance job." Pl. Ex. 3. Finally, the evidence when construed in a light most favorable to Latner suggests that he played a vital role in Delta-HA's acquisition of Navistar's business.
II. Pretext
The prima facie case is intended to identify circumstances in which a jury could infer that an employment decision, if not explained, was the product of illegal discrimination. See, e.g., Gordon, 246 F.3d at 886. However, if the employer can then merely articulate a legitimate, non-discriminatory reason for its decisions, that step shifts the burden back to the plaintiff to show that the employer's stated reason is a pretext, that is, a false explanation for the decision. See id.
Latner's age discrimination claim fails because he has produced no evidence that would allow a reasonable jury to find that defendants' reasons for terminating his employment and hiring Stransky over him were pretexts for discrimination. A pretext "means more than an unusual act; it means something worse than a business error; `pretext' means deceit used to cover one's track's." Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 684 (7th Cir. 2000), citing Reeves, 530 U.S. at 146-48. A plaintiff can establish pretext if he can show that the defendant's proffered reasons for the challenged employment action were either lies or completely lacking in factual basis. See, e.g., Mills v. Health Care Serv. Corp., 171 F.3d 450, 458-59 (7th Cir. 1999) (plaintiff can establish pretext by demonstrating that an "employer's evaluation was so egregiously mistaken that it had no basis in fact"); Ghosh v. Indiana Dep't of Environmenttal Mgmt., 192 F.3d 1087, 1091 (7th Cir. 1999).
Latner is not required to present direct evidence of pretext. He can raise an issue of pretext by producing evidence that the proffered reasons of Delta-HA and HAI for their decisions are not credible:
a plaintiff may accomplish this showing [of pretext] with 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. . . . These formulations are simply different ways of recognizing that when the sincerity of an employer's asserted reasons for discharging an employee is cast into doubt, a fact finder may reasonably infer that unlawful discrimination was the true motivation.
Testerman v. EDS Technical Prod. Corp., 98 F.3d 297, 303 (7th Cir. 1996) (citation omitted), cited in Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 395 (7th Cir. 1998); see also Gordon, 246 F.3d at 888-89. To avoid summary judgment, Latner need not prove pretext; it would sufficient if he came forward with evidence that would allow a reasonable jury to find that the offered reasons for terminating his employment and hiring Stransky over him were false.
If defendants honestly believed their reasons for taking these actions, pretext would be absent. This is true even if the reasons were foolish, trivial, or mistaken. See Gordon, 246 F.3d at 889; Wade v. Lerner New York, Inc., 243 F.3d 319, 323 (7th Cir. 2001) (if employer honestly believed in the nondiscriminatory reason it offered, it is irrelevant whether the employer disciplined the employee for an infraction she did not commit); see also Pitasi v. Gartner Group, Inc., 184 F.3d 709, 718 (7th Cir. 1999) ("it is not sufficient for the employee to show his employer fired him for incorrect or poorly considered reasons"). As the Seventh Circuit has often said, the courts do not function as a "super-personnel department" in reviewing employment decisions. See, e.g., Gordon, 246 F.3d at 889; Rummery v. Illinois Bell Tel. Co., 250 F.3d 553, 557 (7th Cir. 2001) (the court deals with "small gradations, with an employer's subjective comparison of one employee to another, and it is incumbent upon us to remember that what is at issue is not the wisdom of an employer's decision, but the genuineness of the employer's motives"), quoting Testerman, 98 F.3d at 304; Malacara v. City of Madison, 224 F.3d 727, 731 (7th Cir. 2000) (employer may take negative employment actions "for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason"), quoting Bruno v. City of Crown Point, 950 F.2d 355, 364 (7th Cir. 1991).
The defendants contend that Latner was terminated and not rehired because Stransky possessed more overall "product knowledge" in relation to HAI's goals and because Stransky was a better salesman than Latner. Def. Mem. at 18. "Product knowledge" refers to the fact that HAI manufactures three lines of products: resin-coated sand, coatings, and resins. Smith testified that in his opinion, Stransky was strong in two areas (resins and coatings) while Latner was strong in only one (coatings). Smith Dep. at 25. Latner has the burden of producing evidence that tends to show the defendants did not believe Stransky possessed more product knowledge or was a better salesman. Latner argues he has met his burden on pretext in several ways. First, Latner asserts that McLean lied about the decision-making process. Second, Latner contends that the comments made by Otte demonstrate that the defendants' decisions were made on the basis of age. Third, Latner argues that there was no factual basis for the reasons Smith gave for choosing Stransky over Latner. In the court's view, however, the cited evidence would not support a reasonable inference of pretext.
A. McLean's Testimony
In defendants' answers to plaintiff's interrogatories, defendants stated that "it was the opinon of Rick Smith and Keith McLean that Plaintiff was not as qualified . . ." and that "Rick Smith and Keith McLean made the decision." Def. Ans. to Interrog. No. 4. In his deposition, McLean made statements such as: "I don't really know Cal," "I had no real input into the decision between Bob Stransky and Cal Latner," and "Rick was in a much better position to make an assessment relatively between the two than I." McLean Dep. at 17-19. Latner contends that McLean's testimony contradicts the interrogatory response and therefore raises a fact question about the honesty of defendants' explanation for selecting Stransky.
The court sees no material inconsistency. McLean's deposition testimony indicates that he and Smith conducted the selection process together and discussed the individual candidates. Id. The decision between Stransky and Latner came down to what capabilities they thought the candidates possessed. Lacking knowledge of the skill level of the candidates, McLean relied on Smith's assessment. Thus, the decision to hire Stransky was a joint one, though in choosing Stransky, McLean relied upon Smith's knowledge of the two men. The different emphases in the interrogatory answers and the more detailed deposition testimony would not support a reasonable inference of pretext.
B. Otte's Comments
Latner testified that his supervisor, John Alex Otte, Jr., made derogatory age-related comments to him. Latner testified that Otte frequently called him "old man" and "old fart," and on one occasion remarked "Well, why don't you go ahead and retire? And then I can have your job. You've got the best job in the whole industry." Latner Dep. at 53. Latner argues that these comments are evidence that defendants' decisions regarding him were related to his age.
Though these comments may evidence bigotry on the part of Otte, bigotry alone is not actionable. See Gorence v. Eagle Food Cent., Inc., 242 F.3d 759, 762 (7th Cir. 2001) (bigotry "is actionable only if it results in injury to a plaintiff; there must be a real link between the bigotry and an adverse employment action"), quoting Miller v. American Family Mut. Ins. Co., 203 F.3d 997 (7th Cir. 2000). The comments must be made by someone involved in the decision-making process at or near the time of the adverse action and in reference to the adverse action taken. Id. While the comments Latner described were made by his supervisor, the evidence indicates that neither Otte nor Strehl had any input into the decisions to terminate and not rehire Latner. Otte Dep. at 43; Smith Dep. at 57; McLean Dep. at 14. Consequently, Otte's comments do not support a reasonable inference of pretext.
The Seventh Circuit has stated that "evidence of inappropriate remarks not shown to be directly related to the employment decision . . . in connection with other evidence, might support a case under McDonnell Douglas." Gorence v. Eagle Food Cent., Inc., 242 F.3d 759, 762 (7th Cir. 2001). In this case, however, the court finds no other evidence supporting an inference of pretext, and there is simply no evidence linking Otte's alleged comments to the decision not to hire Latner for the new joint venture.
C. Smith's Rationale
In explaining the defendants' decisions, Smith has testified that he chose Stransky over Latner because Stransky possessed product knowledge consistent with HAI's goals and product lines. Smith Dep. at 25. Smith has also testified that he based the decision on his personal knowledge of both Latner and Stransky, and on his belief that Delta-HA's technology, not Latner, was responsible for acquiring Navistar's business. Id. at 9, 25. Smith also believed that Latner was not "aggressive enough for sales." Pl. Ex. 3.Latner argues that Smith's rationale is "dissembled" and lacks a factual basis. First, Latner offers evidence that he possessed product knowledge consistent with HAI's goals, or as consistent as Stransky's product knowledge. Latner argues that business has declined in both resins and coatings, not just coatings, and that he made significant sales of coatings sixty days before his termination. Second, Latner contends that Smith did not have personal knowledge of his sales skills, asserting that Smith never observed him on a sales call. Steve Baker Aff.; Larry E. Critzer Aff. The affidavits of executives from several of Delta-HA's customers state that Smith never personally observed Latner at their facilities. In addition, Latner claims he possessed the requisite sales skills and was responsible for procuring Navistar's business. The affidavits of executives from Navistar and Golden Castings state that Latner was instrumental in winning their business for Delta-HA. Latner presents further evidence that he was unable to obtain some accounts in his territory due to reasons beyond his control. Id.; Smith Dep. at 20-21; Stransky Dep. at 21. (explaining that Latner was unable to obtain the Chrysler account because a competitor offered an incentive package that Delta-HA could not match).
A stated reason for a termination decision is not factually baseless, however, simply because it might be partly wrong as a factual matter. The relevant pretext inquiry is whether the decision-maker honestly believed the asserted facts underlying the termination decision. E.g., Wade, 243 F.3d at 323 (where store manager made decision to discipline employee based on supervisor's report that plaintiff arrived late, the relevant inquiry was whether the decision-maker honestly believed that plaintiff was late; plaintiff's assertion that she arrived on time did not create a disputed fact question material to pretext); Baron v. City of Highland Park, 195 F.3d 333, 341 (7th Cir. 1999) ("the overall correctness or desirability of the reasons proffered is not relevant to the determination of pretext"); Mills, 171 F.3d at 459 (to show pretext, plaintiff would have to produce evidence that evaluation of plaintiff's performance was dishonest, not merely mistaken); Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1304 (7th Cir. 1991) (court's responsibility is not to determine whether alleged acts occurred, but whether the employer's belief was honestly held); Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 559-560 (7th Cir. 1987) (where an employer has honestly described the motivation behind its decision, that decision is not a pretext for discrimination just because the plaintiff asserts the defendant's beliefs were inaccurate).
The above evidence offered by plaintiff tends to prove only that the Smith might have made a poor decision rather than a dishonest one. Latner has not identified any evidence that would support a reasonable a reasonable inference that Smith did not honestly believe that Stransky was a better candidate than Latner. Without such evidence, Latner cannot raise a fact issue on pretext with respect to Smith's reasons for his termination. Rummery v. Illinois Bell Tel. Co., 250 F.3d 553, 557 (7th Cir. 2001) ("`Even an employer's erroneous decisionmaking, exhibiting poor business judgment, is not sufficient to establish pretext.'"), quoting Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1996).
In an effort to find a genuine issue of fact, Latner argues that Smith's testimony about his basis for knowledge of Latner's and Stransky's sales abilities is false. The effort is not successful. Smith testified that he had personal knowledge of Stransky's abilities from their work together years earlier at Ashland. Smith Dep. at 25. Although Smith did not directly supervise Stransky, both men testified that he did supervise Stransky indirectly and met with him often. See Stransky Aff. ¶ 2; Smith Dep. 23-24.
Latner also disputes Smith's testimony about whether Smith observed Latner on sales calls. After reviewing the evidence, it is clear that Latner's attempt to create a dispute here is based on a restrictive definition of a "technical sales or service call," as opposed to a flat denial that Smith ever spent time with Latner and prospective or current customers. Also, the evidence is undisputed that Smith had indirect supervisory responsibility over Latner and his sales efforts. There is no genuine issue of material fact here that would defeat summary judgment.
In summary, then, plaintiff's evidence does not create a genuine issue of material fact regarding pretext because it does not create a reasonable inference that the reasons given by defendants' for their decisions were false. Therefore, plaintiff's claim cannot survive summary judgment.
Conclusion
For the reasons stated above, the court grants summary judgment to defendants Delta-HA and HAI, and denies defendants' motion to strike. Final judgment for defendants will be entered.
So ordered.