Opinion
No. 13-3013
03-12-2014
JACK C. SWENSON, Plaintiff-Appellant, v. SALIENT CORPORATION, et al., Defendants-Appellees.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 11 C 4295
Ronald A. Guzmán,+++++
Judge.
ORDER
Jack Swenson sued his former employer, Salient Corporation, and several of its executives, contending that by firing him they committed age discrimination, see Age Discrimination in Employment Act, 29 U.S.C. § 623(a), and violated state law (breach of contract and unlawful termination). The district court granted summary judgment to the defendants. Because no evidence links age bias to Swenson's discharge, and the record establishes that he was an at-will employee under state law, we affirm.
Salient, a consulting company, hired Swenson as Senior Vice-President of Healthcare in 2010 but terminated his employment less than two months later. His employment began after he discussed the position with Guy Amisano, the company's chief executive, and Bill Carpenter, its chief operating officer. That discussion led to a written offer from Christine Cavanaugh, the corporate controller, dated June 16, 2010. The offer specified that Salient would require him to work on a business plan for the company's new healthcare initiative during his first 60 days on the job. The offer also stated that it "does not constitute an employee contract (i.e., either one of us can terminate employment at will, with or without cause). Further, this offer of employment supersedes any prior or subsequent oral representation that might be made." Swenson submitted a counteroffer, asking Carpenter, among other things, to remove the at-will language. Salient issued a new offer on June 17 that accepted some of Swenson's requests but kept, verbatim, the paragraph on at-will employment. Swenson accepted that offer with his signature.
When he began working, Swenson acknowledged in writing that he received the company's handbook, which sets forth Salient's at-will employment policy. The second paragraph of his acknowledgment declares: "I understand that no statement contained in the Employment Handbook creates any guarantee of continued employment or creates any obligation, contractual or otherwise, on the part of Salient Corporation. I have entered into my employment relationship with Salient Corporation voluntarily, and I acknowledge that there is no specified length of employment."
Swenson's first day with Salient was June 28, giving him 60 days from then (until August 27) to produce a business plan. The day before Swenson was scheduled to leave for a pre-approved cruise vacation on August 5, Carpenter asked Swenson for a draft of the plan, as they had discussed previously. Carpenter did not hear from Swenson until he returned from vacation on August 13, and, again, asked for a draft of the plan. When Carpenter had not received a draft by the following Monday, with Amisano's approval he fired Swenson for insubordination and lack of performance.
In this suit, Swenson maintains two principal claims. His first claim is that Salient fired him because of his age. According to his deposition testimony, on his first day of work, Carpenter demanded that Swenson tell him his age (which was 56). When Swenson refused, Carpenter became increasingly agitated. Swenson also testified that on his third day of work Amisano, too, demanded his age several times and became angry when Swenson again did not oblige. The company, he says, also required that he participate in activities that prevented him from completing the business plan. Swenson views the age inquiries and extra activities as evidence of age bias. His second claim challenges his discharge under state law. He argues that his June 17 offer plus other communications establish an employment contract that Salient breached by firing him.
The district court granted summary judgment for the defendants. It assumed that the executives had asked Swenson about his age but concluded that neither those remarks, nor his workload, implied that he was fired because of his age. The court also concluded that, based on the June 17 letter and company's employee handbook, he was an at-will employee; therefore Swenson could not prevail under state law. (Earlier in the case, the district court had also dismissed a due-process claim; Swenson does not challenge that dismissal, so we say nothing further about it.)
On appeal Swenson first challenges the district court's ruling that no evidence supported his claim of age discrimination. He again cites to Amisano and Carpenter's remarks about his age, which, he says, were made "around the same time" as his discharge. He also repeats his contention that the extra "job duties and tasks that required his constant attention" prevented him from focusing on the business plan an