Opinion
EV 02-12-C-M/H.
June 26, 2003.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant's, St. Mary's Medical Center of Evansville, Inc. ("St. Mary's" or "Defendant"), Motion for Summary Judgment on the claims of Plaintiff, Kenneth R. Macken ("Macken" or "Plaintiff"). Macken's complaint consists of two counts: (1) employment discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and (2) breach of contract. St. Mary's moved for summary judgment on both counts. The parties have fully briefed their arguments, and the motion is now ripe for ruling.
I. FACTUAL AND PROCEDURAL BACKGROUND A. NON-COMPLIANCE WITH LR 56.1
St. Mary's asserts that Macken has not complied with Local Rule 56.1 because he has not responded to St. Mary's list of facts, or listed concise, additional material facts of his own. However, St. Mary's quotes from a previous version of Local Rule 56.1. The current version of Local Rule 56.1, amendment effective July 1, 2002, was designed to decrease long recitations of material facts, and make the process simpler and more efficient for both courts and parties.
Macken, however, does not comply with the current version of LR 56.1 either. Macken's list of thirteen material facts which preclude summary judgment is more like an "Issues Presented" section of an appellate brief than a list of potentially outcome determinative facts in dispute that prevent summary judgment. Moreover, Macken's "Facts" section is argumentative and responds to very little of Defendant's Statement of Material Facts Not in Dispute. See LR 56.1(b) (The new version requires Macken, as the non-movant, to "respond to the movant's asserted material facts by identifying potentially determinative facts and factual disputes which the nonmoving party contends demonstrate that there is a dispute of fact precluding summary judgment."). See also LR Ad. Comm. Comments to 2002 Amendment ("Like movant's Statement, the non-movant's Statement should not contain mere background facts or be argumentative.") (emphasis added). The Court will ignore Macken's legal arguments in his fact section, and refers both parties to the new version of LR 56.1, available at the Southern District's website. Seehttp://www.insd.uscourts.gov/default.htm, link to Publications/Resources.
B. MACKEN'S EMPLOYMENT AT ST. MARY'S
The relevant facts in the light most favorable to Macken follow. Macken, who was born on April 27, 1941, began his employment with St. Mary's in 1980 as a part-time security officer (called "casual officers"). Def.'s Stmt. of Facts ¶ 1. In 1988, Macken became a full-time security officer for St. Mary's and worked at the St. Mary's Medical Center. Id. ¶ 2. In March 1999, St. Mary's purchased Welborn Hospital and its downtown facilities (the "Downtown Campus" or "Welborn"). Id. ¶ 7.
1. Macken's Transfer to the Downtown Campus
In the initial period after the acquisition of the Welborn facility, St. Mary's continued to provide security at the Downtown Campus through casual officers in the same manner that Welborn did. Id. ¶ 10. Casual officers, who relieved the full-time officers on weekends and holidays, were paid at a higher hourly rate than full-time officers. Id. ¶ 11; Macken Depo. at 19. In the Spring of 2000, in an effort to cut costs, St. Mary's decided to use full-time security officers at the Downtown Campus instead of casual officers. Id. ¶ 12. This created an opening for three new full-time officers at the Downtown Campus. Id. ¶ 13. Two of the positions were filled by internal candidates, and St. Mary's posted the vacancy for the third spot on or about June 12, 2000. Id. ¶¶ 14-17. Tim Sloat ("Sloat"), who was thirty-three years old, applied for and was hired for the third Downtown Campus position. Id. ¶ 18.
On or about July 10, 2000, after Sloat had been hired for the Downtown Campus position, Macken placed a request for transfer to the Downtown Campus. Id. ¶ 19. Because the position had already been filled by Sloat, St. Mary's denied Macken's request for transfer. Id. ¶ 20. Macken filed an appeal of the decision denying his request for transfer. Id. ¶ 21. Macken won his appeal, and was transferred to the Downtown Campus. Id. ¶ 22. Macken was happy with the outcome of the appeal. Id. ¶ 26.
Saied Elmi ("Elmi") is the Director of Engineering Services at St. Mary's. Id. ¶ 23. One of his duties is to oversee and manage the security department. Id. ¶ 24. According to Elmi, he allowed Macken to transfer to the Downtown Campus because he felt Macken had taken on additional duties recently and he felt that the transfer would be a favor to Macken. Id. ¶ 25.
2. Termination of Macken's Employment
In the early part of 2001, St. Mary's then-President, Jay Kasey ("President Kasey"), requested that Steven Kern ("Kern"), then-Vice President of Operations at St. Mary's, prepare action plans to reduce staffing and operational costs. Id. ¶ 27. In response to this request, Kern contacted the heads of various departments to get input and suggestions on how to reduce staffing and operational costs within each department. Id. ¶ 28. To initiate consideration of cost-cutting options in the Engineering Department, Kern contacted Elmi. Id. ¶ 29. After consulting with Elmi and Keith Kahre ("Kahre"), the Security Coordinator at St. Mary's, Kern decided to further pursue the possibility of outsourcing biomedical services and the security monitors at the Downtown Campus as a way to reduce costs. Id. ¶ 32.
On or about February 11, 2001, after meeting with the department heads from other departments, Kern summarized his findings for President Kasey and set forth a number of potential cost savings in almost every department at the Hospital. Id. ¶ 33. Kern's memo listed ten cost centers in which reductions in staffing hours, commonly referred to as full-time equivalents ("FTEs"), were considered through either a relocation of services, contracting third party services, and/or elimination of certain services. Id. ¶ 35. The plan recommended the reduction of 61.64 FTEs across the entire hospital. Id. ¶ 34. Approximately sixty-four percent of the FTE reductions were to be obtained through position elimination. Id. ¶ 36.
After further investigation within the Engineering and Security Department, Kern, Elmi, and Kahre decided that it was not in St. Mary's best interests to outsource biomedical services and security monitors. Id. ¶ 37. In March 2001, after ruling out the possibility of outsourcing biomedical services and security monitors, Kahre and Elmi began to explore the option of outsourcing security in order to reduce costs. Id. ¶ 38. To evaluate the potential cost savings of outsourcing security, Kahre and Elmi interviewed three different security providers. Id. ¶ 39. Of the three security providers interviewed, Kahre and Elmi felt that Wackenhut Corporation ("Wackenhut") was the most viable alternative due to the armed officer training they provided. Id. ¶ 43. On or about April 16, 2001, Kahre and Elmi formulated a report that showed potential savings of approximately $88,000.00 that could be realized if St. Mary's switched to Wackenhut as a third party provider for security at the Downtown Campus. Id. ¶ 44.
Based on the estimated savings, Kern decided that outsourcing security at the Downtown Campus was a sound business decision that would aid in reducing St. Mary's overall operational costs. Id. ¶ 46. Ralph Davis, Sanford Pearson, and Macken were the full-time security officers working at the Downtown Campus at the time, and Kern's decision eliminated all three positions. Id. ¶ 48.
On or about May 10, 2001, Kern notified Macken that St. Mary's had entered into an agreement with Wackenhut to provide security services at the Downtown Campus, and that, consequently, his employment would be terminated. Id. ¶ 52. Kern read a termination letter to Macken in a prepared script form. Macken Depo. at 28, 95. When Macken tried to inquire as to the circumstance, situation, and the ability to transfer back to St. Mary's Medical Center, the letter was re-read to him. Id. The termination letter provided, in relevant part:
Dear [Macken]:
This is to inform you that St. Mary's has made the decision to enter into an agreement with Wackenhut Corporation to provide security services at the downtown campus. St. Mary's contract with Wackenhut will become effective on June 1, 2001.
We regret to inform you that the effect of this decision is that your position will be eliminated effective June 1, 2001. However, if you are interested, Wackenhut has agreed to interview you for a security officer position with their organization . . .
Def.'s Ex. O. The letter also provided Macken with the time and place for Wackenhut's interview slots. Id. In addition, St. Mary's offered Macken a separation package that included two months' pay, and informed him that he would receive the separation payment regardless of whether or not he was hired by Wackenhut. Id.
The other two security officers who were terminated with Macken interviewed with and were hired by Wackenhut to work at the Downtown Campus. Id. ¶¶ 58-59. Macken did not interview with Wackenhut, nor did he inquire about the two-month separation package that was offered him because his "intentions were to file a federal lawsuit." Macken Depo. at 60. Macken initially requested to be transferred to another security position at St. Mary's. Id. ¶ 54. However, there were not any security positions available at the time. Id. ¶ 55.
In its handbook, St. Mary's refers to its employees as "Partners in Excellence." St. Mary's decided to call its employees "partners" in order to get more input and recommendations from them. Elmi Depo. at 12. Macken was not consulted or asked for recommendations about how to handle security at Welborn, nor was he advised that his job might be eliminated.
II. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). See also United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith 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.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R. Civ. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which she relies. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, the Court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole v. Fromm, 94 F.3d 254,257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to [his] case, one on which [he] would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
On certain occasions, the Seventh Circuit has suggested that a court approach a motion for summary judgment in an employment discrimination case with a particular degree of caution. See, e.g., Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language implied that summary judgment might be less appropriate in this context based upon the presence of issues of motive and intent. See Holland, 883 F.2d at 1312. As the Seventh Circuit emphasized, however, these cases do not establish a heightened summary judgment standard for employment-related cases. Instead, the language from the prior cases simply means "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). Even when discriminatory intent is at issue, summary judgment is appropriate when the non-movant presents no evidence to indicate motive or intent in support of his position. See Holland, 883 F.2d at 1312. Further, the non-movant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. See Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
III. DISCUSSION A. ADEA CLAIM
Two methods exist for Macken to satisfy his burden of proof: by direct evidence that age discrimination motivated St. Mary's decisions, or by the indirect, burden-shifting method of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Seventh Circuit has defined direct evidence as evidence which, if believed, will "prove the particular fact in question without reliance upon inference or presumption." Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997); Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 629 (7th Cir. 1996) (offering, as an example of direct evidence, an employer's statement "I did not hire you because you are a woman"). Evidence of discriminatory motives must have some relationship to the employment action in question; inappropriate but isolated comments that amount to no more than stray remarks are insufficient. Venters v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997). When such evidence is presented, it shifts the burden to the employer to demonstrate that it would have taken the same action even if the proscribed criterion had played no role in the decision. Id. The persuasiveness of that showing will normally be for the trier of fact to assess, unless the Court can say without reservation that a reasonable finder of fact would be compelled to credit the employer's case on this point. Id.
Under the McDonnell Douglas framework, Macken has the burden of demonstrating, by a preponderance of the evidence, a prima facie case of age discrimination. Wilson v. AM Gen. Corp., 167 F.3d 1114, 1119 (7th Cir. 1999). To establish this prima facie case under the ADEA, Macken must demonstrate "that he was in the protected age group (40 years of age and older, see 29 U.S.C. § 631(a)), was performing his job satisfactorily, and was discharged." Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 394 (7th Cir. 1998). Macken "must also establish that the younger employees situated similarly to the [him] were treated more favorably." Id. If Macken succeeds in establishing his prima facie case, only then does the burden shift to St. Mary's to come forward with evidence of a legitimate and non-discriminatory reason for the employment decision. Sattar v. Motorola, Inc., 138 F.3d 1164, 1168-69 (7th Cir. 1998). If St. Mary's does so, the inference of discrimination dissolves and Macken must prove, by a preponderance of the evidence, that St. Mary's proffered reasons are false and only pretexts for discrimination. Crim v. Board of Educ. of Cairo Sch. Dist., 147 F.3d 535,540 (7th Cir. 1998). "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.
PRETEXT
Although St. Mary's disputes whether or not Macken has identified a similarly situated employee who was treated more favorably, the Court will proceed directly to the issue of pretext because it is dispositive. See Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 572 (7th Cir. 1998) (proceeding directly to the issue of pretext). Macken can establish that St. Mary's proffered explanation is pretextual by showing: (1) that a discriminatory reason more likely than not motivated St. Mary's; or (2) that St. Mary's proffered explanation is unworthy of credence. See Richter v. Hook-Superx, Inc., 142 F.3d 1024, 1030 (7th Cir. 1998) (citations omitted). The Seventh Circuit has defined pretext as "more than a mistake on the part of the employer; pretext means a lie, specifically a phony reason for some action." Id. at 1029-30 (citations omitted). "In essence, the plaintiff must demonstrate that either that the real reason for his termination was age or that the stated reason is unworthy of belief." Id. at 1030.
St. Mary's articulates a non-discriminatory reason for Macken's discharge: the company was making efforts to cut operational expenses, and outsourcing the security services at the Downtown Campus was estimated to save about $88,000.00. Kern, who was charged with analyzing potential avenues for cost reductions, contacted Elmi and Kahre to discuss cost-cutting within the security department. Kern, Elmi, and Kahre first considered the possibility of outsourcing biomedical services and the security monitors, but decided on outsourcing security at the Downtown Campus because it would save approximately $88,000.00. In support of this explanation for why Kern and St. Mary's decided to outsource security (which led to the termination of Macken's employment), St. Mary's submitted the affidavits of Kem and Kahre, deposition testimony by Elmi, the February 11,2001, Memo from Kern to President Kasey about potential cost reductions in all departments (including security at Downtown Campus), and an April 16, 2001, memo that detailed the $88,000.00 cost savings estimate if St. Mary's switched to Wackenhut. Def.'s Exs F, G, J, M, N.
Macken expends little effort in responding to St. Mary's explanation for the decision to outsource the Downtown Campus security and eliminate Macken's position. Macken argues:
Plaintiff was not privy to any discussions concerning movements within the department, or down-sizing. After the downsizing had taken place, Plaintiff was advised that he was being terminated. One of the specific inferences which can be taken is that Macken wasn't included in the discussion because Defendant wanted to get rid of older employees. All facts and inferences as cited above must be resolved in favor of the non-moving party.
Pl.'s Response at 17. The Court finds Macken's argument unpersuasive. Macken's suspicion that he was not invited to Security Department management meetings because St. Mary's "wanted to get rid of older employees" is not supported by any evidence other than his own speculation. The inferences that Macken would have the Court draw are not reasonable, and would lead to the denial of summary judgment in almost all employment discrimination cases because employees are rarely invited to attend meetings where management issues like layoffs or outsourcing are discussed. The fact that St. Mary's called its employees "Partners in Excellence" did not change this employment relationship. Macken's speculation about why he was not invited to meetings where outsourcing was discussed does not suffice to create an issue of fact for trial. See Karazanos v. Navistar Int'l Transportation Corp., 948 F.2d 332, 337 (7th Cir. 1991) ("[A] plaintiff's speculation is not a sufficient defense to a summary judgment motion."). Because Macken has not demonstrated that the real reason for his termination was age or that St. Mary's stated reason is unworthy of belief, Macken's ADEA claim fails at the summary judgment phase. The Court GRANTS Defendant's Motion for Summary Judgment with respect to the ADEA claim.
B. BREACH OF CONTRACT
Macken also alleges breach of contract in his complaint. According to Macken, St. Mary's employment manual, its past practices, and its "partnership agreement" with Macken "created some form of employment contract" with St. Mary's that altered his status as an at-will employee. Pl.'s Response at 13. However, it is well-settled in Indiana that employment manuals do not create employment contracts, and it is clear that Indiana courts will seldom stray from the employment-at-will doctrine. See Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717 (Ind. 1997) ("[I]n Indiana, the presumption of at-will employment is strong, and this Court is disinclined to adopt broad and ill-defined exceptions to the employment-at-will doctrine.") (citations omitted). Moreover, at least three times during his employment at St. Mary's, Macken signed a receipt acknowledging that he received the employee handbook, which contains a clear disclaimer that states that there is no employment contract between St. Mary's and its employees. Macken's other arguments about the existence of an employment contract are equally unavailing and unsupported by any precedent. Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment with respect to the breach of contract claim.
C. OTHER CLAIMS ASSERTED BY MACKEN IN HIS RESPONSE BRIEF
Macken sets forth a number of new legal claims in his response brief as reasons for denying summary judgment, including retaliatory discharge and promissory estoppel. The Court strikes the new claims because they were not included in Macken's complaint. Even if Macken had amended his complaint to include the new claims, the claims lack support from any relevant legal authority. Accordingly, the Court rejects Macken's retaliatory discharge and promissory estoppel arguments.
IV. CONCLUSION
For the reasons stated herein, the Court GRANTS Defendant's Motion for Summary Judgment on all counts.
IT IS SO ORDERED.