Opinion
Cause No. IP 99-1750-C H/K
December 4, 2001
ENTRY ON DEFENDANT'S SUMMARY JUDGMENT MOTION
Plaintiff James Kaley has sued his former employer, defendant Icon International Inc., under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). Kaley has fibromyalgia and was 51 years old when Icon fired him after he had filed an administrative discrimination charge as well as this lawsuit against it. Kaley asserts that his termination was motivated by disability discrimination and retaliation. He also alleges that Icon reassigned a few of his accounts and temporarily changed his compensation structure because of his age, and that Icon failed to provide him with a reasonable accommodation for his disability. Icon has moved for summary judgment. For the reasons discussed below, Icon's motion is denied with respect to Kaley's retaliation claim but granted in all other respects. Kaley's ADA claims for disability discrimination and failure to accommodate fail because, as a matter of law, he was not disabled. Kaley's only timely age discrimination allegations are legally insufficient because Kaley has no evidence of age-based animus or pretext. Kaley's retaliation claim survives summary judgment because, viewing the record evidence in the light reasonably most favorable to Kaley, a jury might conclude that Icon fired Kaley because he had filed this lawsuit.
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 party 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 party believes 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 party has 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 Service, 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 Services, 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).
Undisputed Facts
For purposes of Icon's summary judgment motion, the following facts are either undisputed or reflect the record in the light reasonably most favorable to Kaley, the non-moving party.
Kaley's Employment and Compensation: Icon is in the commercial exhibits business. Kaley began working as an account executive in Icon's Indianapolis office in late 1993 when he was 45 years old.
During an attempted merger with a competitor in 1997, Icon decided to pay straight commission to senior sales executives with more than five years of account executive experience. Parrott Dep. at 115. The competitor's salespeople were paid straight commission and Icon wanted to implement the same program. Id. Kaley previously had been compensated with a base salary plus commission. Kaley Dep. at 56. Icon president Michael Parrott told Kaley he was putting everyone at Icon who sold custom exhibits on straight commission. Id. at 118-19, 122, 134. Beginning January 1998, Kaley received monthly draws against his commissions. In December 1998, however, Kaley learned that he was the only Icon employee actually placed on straight commission. Id. at 124. His commission rates were higher than employees who continued to receive a base salary plus commission. Parrott Dep. Ex. 9. In 1999, Kaley was placed back on a base salary plus commission. At that time, Icon reevaluated commissions paid in the entire company. Parrott Dep. at 114. The straight commission program ceased to exist in 2000. Id. at 117.
After the attempt to merge was dropped, Kaley was allowed to call on the competitor's customers but Parrott prohibited him from calling on some of his pre-merger clients. Kaley Dep. 149-51. In addition, in 1995 or 1996, Parrott had reassigned two of Kaley's accounts, Herff Jones and Modernfold, after the customers had asked that Kaley be removed from the accounts. See Kaley Dep. Ex. 27 (Kaley's 1995 performance evaluation identifying the Herff Jones and Modernfold accounts as two of Kaley's failures for 1995); see also Amended Cplt. ¶ 11 (alleging the reassignment of accounts in 1996); Parrott Dep. at 61. According to Kaley, Parrott told him that he reassigned the Herff Jones account to a salesperson in his thirties because he was closer in age to the client's representative. Modernfold was reassigned because Kaley admittedly had alienated the client representative. In addition, in October 1999 Parrott reassigned the Accuride account to Cynthia Fielden, a salesperson in her mid-forties. Parrott called Accuride after he began hearing rumors that it wanted to change account executives. Parrott Dep. at 59-61. Accuride's representative told Parrott he wanted his account transferred because Kaley was difficult to deal with and because he had a good relationship with Fielden. Id.
Kaley's Fibromyalgia: Neither party has produced any medical evidence. The description of Kaley's condition that follows is based entirely on Kaley's own account. According to Kaley, he was diagnosed with fibromyalgia in late 1997, although there is evidence that the official diagnosis did not come until 1998. See Kaley Dep. at 151, 180. Kaley's fibromyalgia prevents him from performing prolonged physical activity, causes him to tire easily, and limits his ability to socialize. Id. at 37-38. Standing for long periods of time causes Kaley a higher rate of pain and diarrhea. Id. at 173. Kaley experiences discomfort walking up and down steps. He does not sleep deeply; cannot sleep for extended periods of time; and has been treated for a sleeping disorder associated with his fibromyalgia. Id. at 39. Kaley's fibromyalgia causes him to have a limited range of flex and motion. Kaley Dep. II at 130-31. It also precludes him from taking karate lessons and from being successful in sports. Id. at 136.
"Fibromyalgia is a disease that is similar to chronic fatigue syndrome; its cause is unknown, there is no cure, and the symptoms are entirely subjective and usually involve chronic pain and fatigue." McPhaul v. Board of Com'rs of Madison County, 226 F.3d 558, 562 (7th Cir. 2000).
Fibromyalgia also affects the muscles that control Kaley's eyes. This, in combination with diarrhea, has prevented him from driving "probably a hundred" times in the last two and a half years. Kaley Dep. II at 132-34.
According to Kaley, fibromyalgia substantially limits almost all life activities having to do with motion, including walking, sitting, and standing. Id. at 136. Kaley's doctor has instructed him not to sit or stand for long periods of time. Kaley Dep. at 172-73.
In spite of his condition, Kaley can bicycle for limited periods of time. Id. at 174. He can golf, do housework, paint his house, shop, travel, and socialize to some extent. He also went up and down the stairs frequently at Icon as well as at his two-story home. Id. at 175.
At some point, Kaley gave Parrott a pamphlet on fibromyalgia. Parrott responded by saying: "I wish you would have told me, I want all my salespeople healthy." Id. at 160. Sometime between late 1998 and 1999, Kaley had a discussion with Parrott about Kaley parking in a handicap parking spot in front of the building. In mid-1998, Kaley requested that his office be moved to the first floor because of his fibromyalgia. Kaley told Parrott that walking up and down the stairs was creating a hardship for him. Kaley Dep. II at 11. Kaley also told Parrott that he did not want to drive to Chicago and back in the same day. Parrott Dep. at 84.
During 1998, Kaley repeatedly informed Parrot of his fibromyalgia and requested to communicate with the Fort Wayne office by facsimile and by telephone instead of driving there. His request not to drive was denied "probably a dozen times." Kaley Dep. II at 201-03.
Kaley's Warning and Discharge: In the summer of 1999, Kaley's co-worker Jennifer Arthur reported that he had engaged in inappropriate and offensive conduct. Following the complaint, Icon obtained statements from Arthur and co-worker Dan Weddle describing Kaley's use of threatening and offensive language, creating tension and disruption in the work place, spreading false rumors, discussing company business with competitors, and using company facilities for personal use. See Arthur and Weddle Affidavits. Icon previously had made Kaley aware of his attitude and relationship problems at work. See Kaley Dep., Ex. 28 (1996 evaluation: Parrott ranked Kaley's adaptability, sociability, enthusiasm and cooperation as marginal or inadequate; "David continues to struggle with his relationships."); Kaley Dep. II, Ex. 29 (1997 evaluation noted Kaley's continued difficulty building strong relationships); Kaley Dep. II, Ex. 30 (1998 evaluation: personal characteristics and behavior patterns ranked inadequate or marginal; Kaley "is extremely difficult to tolerate in an organization such as ICON. Stubborn, set in his ways, defiant at times, David's derogatory comments about the company, its policies, and its people are proving to be increasingly destructive and intolerable.").
Kaley's full name is James David Kaley, and some documents refer to him as "J. David Kaley" or "David."
In response to Arthur's and Weddle's allegations, Icon's Parrott, human resources director Mark Flegge, and sales manager Jim McCrady (Kaley's direct supervisor) met with Kaley on August 5, 1999, to give him a final, written warning. The counseling report presented to Kaley at the meeting referred to Icon's "Code of Conduct," discussed Kaley's continued unacceptable behavior, and referred to the co-worker complaints. See Kaley Dep., Ex. 19 ("After repeated efforts to direct and counsel David on these matters (as our personnel files can attest to), this formal written warning has been given to help David address these issues. David must change his behavior immediately to comport with the Company's culture and policies or consider other employment."). Parrott told Kaley at the meeting that any further inappropriate conduct would result in his termination. See Kaley Dep. at 200.
In late December 1999, Kaley took a marketing letter that Weddle had prepared for a company on Kaley's call list. See Kaley Dep. II at 30-34. Weddle had prepared a mailing to prospective customers and had placed the envelopes in the company outbox to be delivered to the post office. Kaley saw a letter addressed to his client on top of the stack. He believed that Weddle was encroaching on his customers. Calling on someone else's account is a violation of company policy. Parrott Dep. at 38. Kaley took the letter out of the outbox so that he could talk to Weddle about it. Weddle approached Kaley about the letter but did not request the letter back. Kaley eventually threw the letter away.
Flegge and McCrady told Parrott about the incident. Parrott decided to terminate Parrott's employment. Parrott Dep. at 8, 138-39. Flegge and McCrady informed Kaley on January 6, 2000, that he had violated the terms of the final written warning and, as a result, was being fired. Kaley Dep. II at 42.
Kaley does not dispute taking the letter, although he does not believe that his action violated the code of conduct. See Kaley Dep. II at 45. Kaley contends that he was set up to take the letter so that he would be fired. Kaley Dep. II at 285-86.
Kaley's EEOC Charge and Lawsuit: Kaley filed a charge with the Equal Employment Opportunity Commission (EEOC) on April 8, 1999, alleging age and disability discrimination (including a failure to accommodate a disability). Kaley filed this lawsuit on November 10, 1999. On December 30, 1999, Parrott yelled at Kaley at a client's event: "How could you involve me in a lawsuit like this?" Kaley Dep. II at 50-51, 59. Parrott fired Kaley one week later, after the letter incident.
Discussion I. Statutes of Limitations
Many of Kaley's allegations are barred by the applicable statutes of limitation. The scope of Kaley's actionable allegations is far narrower than the allegations in his complaint and in his deposition.
In Indiana, a disability discrimination charge under the employment provisions of the ADA must be filed within 300 days of the alleged violation. See 42 U.S.C. § 12117(a) (incorporating enforcement provisions of Title VII of the Civil Rights Act of 1964); 42 U.S.C. § 2000e-5(e) (under Title VII, in deferral states, a discrimination charge must be filed with the EEOC within 300 days of the alleged discriminatory act); see also Doe v. R.R. Donnelly Sons Co., 42 F.3d 439, 445 (7th Cir. 1994) (Indiana is a deferral state). Under the ADEA, an age discrimination charge must be filed within 180 days of the alleged violation. See 29 U.S.C. § 626(d)(1).
Kaley filed his discrimination charge with the EEOC on April 8, 1999. The statute of limitations presumptively bars Kaley from seeking relief for alleged disability discrimination arising from adverse employment actions that occurred on or before June 12, 1998. Kaley's age discrimination claim is time-barred to the extent it is based on events that allegedly occurred on or before October 10, 1998.
Kaley has opposed Icon's statute of limitations argument only to the extent it pertains to his allegation that he was singled out for the switch to compensation by straight commission. See Pl. Mem. at 21 n. 5. Kaley alleges that he did not learn of this different treatment until December 1998, which falls within the actionable period for his claims. Kaley is correct that the statute of limitations does not begin to run on employment discrimination claims until the employee knows or has reason to know of conduct that reasonably should put him on notice that he should assert his rights. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 449-50 (7th Cir. 1990) (statute of limitations in age discrimination case began to run when plaintiff discovered injury); Soignier v. American Bd. of Plastic Surgery, 92 F.3d 547, 551 (7th Cir. 1996) (discovery of the original act of discrimination is when the statute of limitations begins to run under the ADA). Therefore, based on Kaley's testimony concerning when he learned of the alleged different treatment, which the court must credit when deciding a motion for summary judgment, Kaley's allegation about being singled out for straight commission is not time-barred.
In the absence of any contrary argument by Kaley, the court concludes that many of Kaley's other allegations are time-barred, however. These include: (1) Icon's alleged assignment of accounts to younger, non-disabled sales executives in 1995 or 1996; (2) Icon's alleged denial of Kaley's request to participate in meetings via conference call or fax during 1997 and early to mid-1998; (3) Icon's requirement that Kaley drive to Fort Wayne in 1997 or early 1998; (4) Icon's reassignment of accounts during the attempted merger during the period January through December 1997; (5) Icon's assignment of Kaley to an office on the second floor of the Indianapolis facility in early 1998; and (6) Icon's lack of staff or technology support for Kaley prior to mid-1998.
Kaley's EEOC charge indicated a "continuing action," but Kaley has made no attempt in this lawsuit to invoke the continuing violation theory to revive his time-barred allegations. See Selan v. Kiley, 969 F.2d 560, 564-65 (7th Cir. 1992) (discussing three continuing violation theories that can operate to extend time limits in employment cases under certain circumstances). The court is not inclined to make arguments for parties. The application of the continuing violation theory is not automatic, and it probably would not apply here in any event.
Thus, Kaley's claims are limited to the following incidents: (1) being the only employee switched to straight commission; (2) his January 1999 warning; (3) his August 1999 final warning; (4) the reassignment of the Accuride account in October 1999; (5) any failure to accommodate in the relevant period; and (6) his January 2000 discharge.
II. The Merits of the ADA Claims
Kaley alleges that Icon violated the ADA by discriminating against him because of his disability when it fired him and by failing to provide him a reasonable accommodation. Both claims fail because the evidence shows as a matter of law that Kaley was not a person with a disability under the ADA.
The ADA prohibits discrimination by covered employers against qualified individuals with a disability. Sutton v. United Airlines, Inc., 527 U.S. 471, 475 (1999); Contreras v. Suncast Corp., 237 F.3d 756, 762 (7th Cir. 2001). The statute provides that no employer "shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). Kaley alleges that Icon violated the ADA by discharging him because of his disability and by failing to accommodate his disability.
The threshold issue for both claims is whether Kaley is a "qualified individual with a disability." See, e.g., EEOC v. Sears, Roebuck Co., 233 F.3d 432, 437 (7th Cir. 2000), citing Best v. Shell Oil Co., 107 F.3d 544, 547-48 (7th Cir. 1997). In relevant part, the ADA defines "disability" as: "a physical or mental impairment that substantially limits one or more of the major life activities." 42 U.S.C. § 12102(2).
The ADA also defines "disability" as having a record of a disabling impairment or being regarded as having such an impairment. See 42 U.S.C. § 12102(2)(B) (C). Kaley has not argued that he was covered by these definitions, so the court considers only whether he was actually disabled under § 12102(2)(A).
"Major life activities" are basic activities that the average person can perform with little or no difficulty. 29 C.F.R. § 1630.2(i). They include, for example, seeing, working, sitting, standing, and walking. Id. A person is "substantially limited" if compared to the average person in the general population, he cannot perform or is limited in the manner, duration or condition in which he can perform a major life activity. See Emerson v. Northern States Power, 256 F.3d 506, 511-12 (7th Cir. 2001), citing 29 C.F.R. § 1630.2(j)(ii); see also Roth v. Lutheran General Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995) ("not every impairment that affected an individual's major life activities is a substantially limiting impairment"). To measure the degree of impairment, the EEOC regulations recommend the consideration of the following factors: "(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630(j)(2).
Kaley alleges that his fibromyalgia affects "almost all life activities having to do with motion," including the major life activities of walking, sitting, and standing. He also asserts that his condition limits his ability to socialize, drive, have a full range of motion, and sleep normally. Icon argues that Kaley is not disabled as a matter of law because his fibromyalgia does not substantially limit him in any major life activity. The court agrees with Icon.
In his brief, Kaley also referred to working as a major life activity without arguing directly that he was substantially limited in working. Kaley cannot base his disability clam on alleged limitations on his ability to work. There is no evidence that he required accommodation to perform his own job, let alone that he was more generally limited in his ability to work a class or broad range of jobs. See Skorup v. Modern Door Corp., 153 F.3d 512, 515 (7th Cir. 1998) (plaintiff with "shoulder fibromyalgia" who claimed substantial limitation on her ability to work was required to identify what requirements posed by a class or a broad range of jobs were problematic in light of her specific limitations; the inability to perform her own job was insufficient to prove a disability).
In addition, Kaley's allegations about not being able to participate in karate or to perform well in sports add nothing to his disability claim. See Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998) (activities such as gardening, shoveling snow and "engag[ing] in other physical exercise . . . clearly fall outside the range of `major' life activities.").
Kaley's claim fails because he has not come forward with evidence that tends to show that his fibromyalgia symptoms substantially limit any major life activity. The only specific allegations in the record about the concrete effects of Kaley's symptoms are his assertions that (1) he cannot stand, sit, or drive for long periods without taking a break; (2) he sometimes cannot drive; and (3) he tires easily. Kaley also testified that his doctor has recommended that he should not go without sleep; he should not consume large amounts of caffeine or alcohol; and he should drink a lot of water.
Based on this evidence of the extent of Kaley's condition, which includes no medical evidence, a jury could not reasonably find that he was substantially limited in a major life activity. The adverse effects of his fibromyalgia are not of a nature or level of severity that impose significant restrictions on Kaley compared to the average person in the general population. See Hoeller v. Eaton Corp., 149 F.3d 621, 625 (7th Cir. 1998) (although a difficult condition, bipolar disorder did not substantially limit major life activity; plaintiff alleged limitations on working and "communication skills and interpersonal relationships"). Kaley's own conclusory testimony that he is substantially limited in a major life activity is not sufficient to create an issue for trial. See, e.g., McPhaul v. Board of Com'rs of Madison County, 226 F.3d 558, 564 (7th Cir. 2000) (citation omitted) ("All that McPhaul can present in support of her reasonable accommodation claim is her own self-serving testimony [about the accommodation she allegedly needed], and in this case, that is just not sufficient for a reasonable jury to find that she is a qualified individual with a disability under the ADA.").
Because Kaley is not disabled as a matter of law, his disability discrimination and reasonable accommodation claims necessarily fail. In addition, because Kaley was not disabled, Icon had no duty to engage in an "interactive process" to find a reasonable accommodation under the ADA. See 29 C.F.R. § 1630, Appendix, Interpretive Guidance on Title I of the ADA ("interactive process" involves the employer and the "qualified individual with a disability").
Even if Kaley could create a fact issue on his disability status, his reasonable accommodation claim also would fail because he has produced no evidence that the accommodations he asked for were reasonably necessary for him to perform the essential functions of his job. He has produced no medical evidence of his disability or its effects. See McPhaul, 226 F.3d at 564 (plaintiff was not a "qualified individual" where she provided no medical evidence to support her claim that her requested accommodation would have improved her performance; none of her physicians ever recommended any work restrictions or accommodations due to her condition).
III. The Merits of the ADEA Claim
Kaley bases his surviving age discrimination claim on his forced switch to payment on straight commission for about a year and on the transfer of the Accuride account to a younger sales representative. Kaley's age discrimination claim fails as a matter of law because Kaley has no evidence that Icon's stated reasons for these decisions were pretexts for age discrimination.The ADEA makes 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). The ADEA protects employees 40 years of age and over. 29 U.S.C. § 631.
Because Kaley does not offer any direct evidence of age discrimination, the court analyzes his claim under the three-step pattern of 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); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (assuming that the McDonnell Douglas framework applied to an ADEA claim).
Under this model, Kaley must first establish a prima facie case of age discrimination by producing evidence that tends to show that (1) he belongs to the protected class; (2) he was performing his job satisfactorily; (3) he suffered an adverse employment action; and (4) Icon treated substantially younger, similarly situated employees more favorably than Kaley. 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 just someone outside the protected class to raise an inference of discrimination).
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.
A. The Prima Facie Case
In support of summary judgment, Icon contends that Kaley cannot show that he was performing his job satisfactorily, the second element of his prima facie case. According to Icon, Kaley's performance history, including co-worker and customer complaints, prove as a matter of law that he was not living up to its legitimate expectations. Kaley asserts that evidence of his good performance for the company is sufficient to establish this second element of his prima facie case for summary judgment purposes.
Because a plaintiff's burden to establish a prima facie case in discrimination cases is not onerous, the Seventh Circuit has recognized that a plaintiff may sometimes create a material dispute about his own abilities by simply attesting that he was performing satisfactorily. See Roberts v. Separators, Inc., 172 F.3d 448, 451 (7th Cir. 1999) (assuming that plaintiff could establish this element of his ADEA claim and moving on to related pretext analysis), citing Gustovich v. ATT Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992) (distinguishing between the use of such "self-serving" evidence at the prima facie case stage and at the pretext analysis).
According to Kaley, he never fell below the minimum level of sales required of his position. In fact, he exceeded that minimum three times. In 1999, the year Kaley was fired, he met his "sales goal" — the highest sales standard that Icon establishes. See Kaley Dep. II at 86-93. Based on this record, and because the pretext issue controls here in any event, the court assumes but does not decide that a reasonable jury could conclude that Kaley was performing his job satisfactorily — although there is substantial evidence to the contrary.
B. Pretext
Kaley's age discrimination claim fails because he has produced no evidence that Icon's reasons for temporarily changing his compensation structure and reassigning the Accuride account 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 Service Corp., 171 F.3d 450, 458-59 (7th Cir. 1999) (to demonstrate pretext, plaintiff must show that the employer was "egregiously mistaken" or that its stated reason had no basis in fact); Ghosh v. Indiana Dep't of Environmental Management, 192 F.3d 1087, 1091 (7th Cir. 1999).
Kaley is not required to present direct evidence of pretext. See Gordon, 246 F.3d at 886. He can raise an issue of pretext indirectly by producing evidence that Icon's proffered reasons for taking actions against him 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 Products 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, Kaley need not prove pretext; it is sufficient to come forward with evidence that would allow a reasonable jury to find that the offered reasons for placing Kaley on straight commission and reassigning the Accuride account were false.
If Icon honestly believed its 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, 243 F.3d at 323 (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.
Icon asserts that it decided to place all senior account representatives on straight commission in connection with its attempted merger with a competitor. The competitor already was using a similar compensation plan. According to Icon, Kaley was the only account representative who qualified for the straight commission program at the time. In 1999, a decision was made to put all account representatives back on base salary plus commission. Regarding the Accuride account, Icon asserts that it took the account away from Kaley at the client's request.
It is far from clear that the temporary change in commission structure or the reassignment of one account amounted to actionable adverse employment actions. Kaley was paid a higher commission rate under the straight commission compensation plan, and there is no record evidence comparing his actual earnings under that plan with his earnings under the old compensation plan. Similarly, there is no evidence regarding the effects of the loss of the Accuride account on Kaley's earnings. Because the defense did not argue that these actions were not actionable in its motion, however, the court has not pursued the matter.
Kaley has not come forward with any evidence that Icon's reasons for its actions were pretextual. On this record, there is no evidence on which a jury reasonably could rely to conclude that Icon's assertion that it decided to try a new commission program for its more experienced account representatives is a lie. Similarly, there is no evidence that Icon took the Accuride account away from Kaley for any reason other than Kaley's poor relationship with the client. Kaley admits that he knew Accuride was going to request that the account be transferred away from him. Kaley's age discrimination claim fails as a matter of law.
The court gives no consideration to the fact that Parrott, who is 60 years old, made both positive and negative decisions affecting Kaley, including the decisions to reassign some accounts and to place him on straight commission. Although these facts are relevant, the Seventh Circuit has made clear that the "same actor inference" is unlikely ever to be decisive on summary judgment in favor of an employer. Johnson v. Zema Systems Corp., 170 F.3d 734, 745 (7th Cir. 1999). Similarly, the fact that Parrott is older than Kaley does not support summary judgment. Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 361 (7th Cir. 2001) ("the relative ages of the terminating and terminated employee are relatively unimportant"; also noting that Johnson v. Zema Systems "emphatically rejected" the same actor inference).
IV. Kaley's Retaliation Claim — ADA and ADEA
To protect an employee's ability to assert his rights, the ADA and the ADEA also make it an unlawful practice for an employer to retaliate against an employee because the employee has opposed an unlawful employment practice or participated in an investigation or proceeding involving practices made unlawful under those statutes. See 42 U.S.C. § 12203(a); 29 U.S.C. § 623(d).To establish a claim for retaliation, a plaintiff must show: (1) that he engaged in statutorily protected activity; (2) that he suffered an adverse employment action; and (3) that the protected activity caused the employer to take the adverse action. Silk v. City of Chicago, 194 F.3d 788, 799 (7th Cir. 1999) (ADA); Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000) (ADEA). Icon agrees that the first two elements are present here. Kaley engaged in protected activity when he filed a charge with the EEOC in April 1999 and when he filed this lawsuit in November 1999. An employee can engage in protected activity by filing an EEOC charge or lawsuit that is later determined to be without merit, as long as the filing was reasonable and in good faith. Dey v. Colt Const. Dev. Co., 28 F.3d 1446, 1457-58 (7th Cir. 1994).
The point of contention is whether a jury could reasonably find on this record that Icon would not have fired Kaley if he had not filed the EEOC charge and/or this lawsuit. To probe the causation element, the Seventh Circuit has often applied the McDonnell Douglas framework to retaliation claims that lack direct evidence of retaliation. See, e.g., Silk, 194 F.3d at 799; Sauzek, 202 F.3d at 918. The fit between the McDonnell Douglas framework and retaliation claims is not necessarily a comfortable one, however. See Bourbon v. Kmart, 223 F.3d 469, 475-76 (7th Cir. 2000) (Posner, J., concurring) (questioning conventional adaptation of McDonnell Douglas test to retaliation claims where plaintiff comes forward with evidence of "causal connection" between protected activity and adverse employment action).
Kaley's retaliation claim is best viewed as based on a "mosaic" of circumstantial evidence — such as comments by supervisors, suspicious timing, inconsistent explanations or behavior, and so on — that would allow the needed inference of unlawful intent. In disparate treatment cases, the Seventh Circuit has often recognized that such cases may not fit neatly into the "direct" or "indirect" categories but may still survive summary judgment. See, e.g., Venters v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997) (reversing summary judgment for employer; "remarks and other evidence that reflect a propensity by the decision maker to evaluate employees based on illegal criteria will suffice as direct evidence of discrimination even if the evidence stops short of a virtual admission of illegality"); Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th Cir. 1994) (circumstantial evidence — like suspicious timing, ambiguous statements oral or written, behavior — is admissible to provide a basis for drawing an inference of intentional discrimination). The same reasoning extends to retaliation claims, particularly in light of the confusion in retaliation law identified by Judge Posner in his concurring opinion in Bourbon v. Kmart.
Kaley has two pieces of causation evidence. First, he was terminated less than two months after he filed this lawsuit against Icon. Icon tries to minimize this close temporal relationship by focusing on the nine month period between Kaley's EEOC charge and his termination. However, a jury would be free to consider Icon's response to the lawsuit, a separate protected activity, independent from its response to the administrative charge. Second, Kaley bolsters his timing evidence with evidence that Parrott "yelled" at him at a client-event (the opening of a museum regarding the infamous John Dillinger) in December 1999: "How could you involve me in a lawsuit like this?"
Icon does not dispute this evidence for purposes of summary judgment, but Parrott denies having made the statement. Kaley has not offered evidence from anyone else at the event to corroborate his account of what was "yelled."
Taken together, Kaley's causation evidence is sufficient to create an issue for trial. While Kaley has not argued that Parrott's statement is direct evidence of his retaliatory intent, the statement is some evidence that would be relevant to a jury's decision about the reasons for Kaley's firing. It must be combined with the evidence that Kaley had filed his lawsuit less than two months earlier and that Parrott fired him just one week later. See Hunt-Golliday v. Metropolitan Water Reclamation Dist. of Greater Chicago, 104 F.3d 1004, 1014 (7th Cir. 1997) (causal link element may be established through circumstantial evidence of suspicious timing); Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187, 196 (7th Cir. 1994) (plaintiffs may rely on "telling temporal sequence"); Dey, 28 F.3d at 1458 ("Generally, a plaintiff may establish such a [causal] link through evidence that the discharge took place on the heels of protected activity."). When the evidence must be viewed in the light reasonably most favorable to Kaley, a jury could reasonably infer from this evidence that Kaley was fired at least in part because he engaged in protected activity. Summary judgment is denied as to Kaley's retaliation claims under the ADA and ADEA.
Conclusion
Icon's motion for summary judgment is denied with respect to Kaley's retaliation claims because a reasonable jury could find that Kaley's protected activity caused Icon to fire him. Icon's summary judgment motion is granted with respect to Kaley's disability discrimination and reasonable accommodation claims because Kaley is not disabled as a matter of law. Icon's summary judgment motion also is granted with respect to Kaley's age discrimination claim because he has offered no evidence of pretext related to that claim. The court will hold a scheduling conference on Wednesday, December 13, 2001, at 10:00 a.m. in Room 330, U.S. Courthouse, Indianapolis, Indiana, to set a new trial date on the surviving retaliation claims.
So ordered.