Fleishman v. Cont'l Cas. Co.

• Decision Date: 18 October 2012
• Docket Number: No. 11–3754.,11–3754.
• Citation: 698 F.3d 598
• Parties: Howard FLEISHMAN, Plaintiff–Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

698 F.3d 598

26 A.D. Cases 1775

46 NDLR P 26

Howard FLEISHMAN, Plaintiff–Appellant,

v.CONTINENTAL CASUALTY COMPANY, Defendant–Appellee.

No. 11–3754.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 18, 2012.

Decided Oct. 18, 2012.

L. Steven Platt (argued), Attorney, Clark Hill, Chicago, IL, for Plaintiff–Appellant.

Camille A. Olson (argued), Attorney, Seyfarth Shaw LLP, Chicago, IL, for Defendant–Appellee.

Before FLAUM, SYKES, and TINDER, Circuit Judges.

FLAUM, Circuit Judge.

After working for Continental Casualty Company (“Continental”) for nearly twenty years, Howard Fleishman suffered a brain aneurism that required him to intermittently miss work from 2003 to 2005. Following his medical problems, he continued to work on workers' compensation claims as a staff attorney and was assigned to a new group that handled high-value cases. Unfortunately for Fleishman, his supervisor began receiving a series of performance-related complaints that ultimately led to his termination in 2007 at the age of fifty-four. Fleishman filed suit under the Age Discrimination in Employment Act (“ADEA”) and the Americans with Disabilities Act (“ADA”), alleging that Continental discriminated against him because of his age and a disability stemming from the aneurism. The district court granted Continental's motion for summary judgment, and we affirm. Fleishman offers no evidence of age discrimination and does not meet the definition of disabled under the ADA.

I. Background

Howard Fleishman began working for Continental Casualty Company in 1984 as a trial attorney defending workers' compensation claims. David Izzo oversaw the attorneys in Continental's Chicago staff counsel office, including Fleishman. Izzo reported to Jacqueline Johnson, who oversaw all of Continental's staff counsel offices.Beginning in 2003, Fleishman suffered a series of medical problems related to a brain aneurism. As a result, he took intermittent medical leaves between July 2003 and June 2005. In the midst of these treatments, Izzo mentioned to Fleishman that his numbers “were off” because he was out on leave. Izzo inquired whether Fleishman thought about retirement and, if so, that Izzo would make sure he received severance. Fleishman declined and did not request another leave or accommodation after his June 2005 return, although he now had a noticeable dent on the side of his head and could no longer drive.

In early 2005, Continental created the Major Case Unit (“MCU”) to handle high-exposure claims and assigned Fleishman to the new group. He remained in the staff counsel office overseen by Izzo, but Fleishman prepared reports for adjusters in the MCU aimed at minimizing Continental's costs and exposure. Early in the assignment, Nanette Husnik, a claims manager in the MCU, received complaints from adjusters about Fleishman's work. In mid–2005 and, upon receiving additional complaints, again in 2006, Husnik relayed these complaints to Izzo and Johnson, both of whom confirmed the legitimacy of the concerns regarding Fleishman. Fleishman's critics were not limited to the MCU either, as claims specialist Rina Patel requested that Izzo transfer all of her work from Fleishman to another staff attorney in the office in March 2006. Izzo informed him of these concerns, and on one occasion Johnson expressed similar dissatisfaction to Fleishman.

These issues represented a change of course for Fleishman, who had performed his job duties adequately until 2005. He received a performance award in 2003 and a raise based on his 2004 performance review. However, Fleishman received a “3” on his 2005 performance review, meaning he only met “most” expectations. This score also made him ineligible for a raise. Izzo discussed the review with Fleishman in the spring of 2006. According to Fleishman, Izzo informed him that Johnson made the ineligibility decision, and when Fleishman got upset, Izzo said “hey, she's out to get me too,” referring to Johnson. Fleishman further testified that Izzo said he would talk to Mark Stevens, head of legal services, about getting him a raise since he missed time in 2005, but Izzo informed him the next day that Stevens said time off did not mitigate the issues in the evaluation unless Fleishman took short-term disability.

Fleishman's issues persisted. Izzo continued receiving complaints from claims adjusters and, after reviewing a number of Fleishman's files, Izzo e-mailed Johnson informing her that he saw why the adjusters were dissatisfied. In September 2006, after consulting with Johnson and a human resources consultant, Izzo placed Fleishman on a performance improvement plan. The plan provided that if Fleishman did not improve in the next sixty days, Continental could take disciplinary action including termination. Despite these measures, Todd Lewis, Husnik's supervisor, complained that Fleishman “basically did nothing for [the MCU].” In response, Izzo met with Husnik who reiterated her dissatisfaction with Fleishman. In early 2007, Husnik and Lewis informed Izzo that they would not permit Fleishman to work on any more MCU cases. Izzo believed termination was the appropriate resolution to these issues, and after Izzo consulted with Johnson and Continental's assistant vice president of human resources, Fleishman's employment was terminated in January 2007. Izzo was forty-eight at the time, while Fleishman was fifty-four. Four months later, Continental hired forty-eight-year-old Patrick Cremin and transferred some of Fleishman's cases to him.

Shortly after his termination, Fleishman filed suit against Continental alleging violations of the ADEA and ADA. The district court granted Continental's motion for summary judgment, finding that Fleishman failed to provide direct evidence of age discrimination and was not disabled under the ADA. Fleishman timely appealed.

II. Discussion

Fleishman challenges the district court's entry of summary judgment against him on both his ADEA and ADA claims. The ADEA makes it unlawful for an employer to “discharge any individual ... because of such individual's age.” 29 U.S.C. § 623(a)(1); see also29 U.S.C. § 631(a) (limiting protections to individuals over forty). Similarly, the ADA prohibits an employer from discharging “a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). Summary judgment is appropriate when there is no genuine issue of material fact such that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Berry v. Chi. Transit Auth., 618 F.3d 688, 690–91 (7th Cir.2010). To survive summary judgment, the nonmovant must produce sufficient admissible evidence, taken in the light most favorable to it, to return a jury verdict in its favor.¹Id. at 691. We review the district court's decision de novo.

In discrimination cases, the plaintiff can survive summary judgment under either the direct or indirect method. For reasons discussed in more detail below, Fleishman proceeds under the direct-evidence method. Taken literally, direct evidence would require an admission by the employer, but we also permit circumstantial evidence that “points directly to a discriminatory reason for the employer's action.” Davis v. Con–Way Transp. Cent. Express, Inc., 368 F.3d 776, 783 (7th Cir.2004) (alterations omitted). We have also called this a “convincing mosaic” of circumstantial evidence, but fundamentally the plaintiff must connect the circumstantial evidence to the employment action such that a reasonable juror could infer the employer acted for discriminatory reasons. See Rhodes v. Ill. Dep't. of Transp., 359 F.3d 498, 504 (7th Cir.2004).

A. Summary Judgment Burdens

As an initial matter, the parties dispute what a plaintiff's summary judgment burden is in ADEA and ADA cases. Fleishman argues that he must produce facts that permit a jury to infer that discrimination was a “motivating factor” in his termination. However, Gross v. FBL Financial Services held that the ADEA's language proscribing discrimination “because of” age requires the plaintiff to prove at trial that age was the but-for cause of the adverse employment action. 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). We followed the Supreme Court's lead in Serwatka v. Rockwell Automation, Inc. by noting the ADA's analogous language likewise requires plaintiffs bear the ultimate burden of persuasion to show but-for causation. 591 F.3d 957, 962 (7th Cir.2010).

Because summary judgment is designed to determine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), our post-Gross cases now require plaintiffs in ADEA cases to show evidence that could support a jury verdict that age was a but-for cause of the employment action at the summary judgment stage. See, e.g., Barton v. Zimmer, Inc., 662 F.3d 448, 455–56 (7th Cir.2011). Our sister circuits have done the same. See, e.g., Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514–15 (8th Cir.2011); Mora v. Jackson Mem'l. Foundation, 597 F.3d 1201, 1203–04 (11th Cir.2010); Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 376 (D.C.Cir.2010); Kelly v. Moser, Patterson and Sheridan, LLP, 348 Fed.Appx. 746, 749–50 (3d Cir.2009). Accordingly, we similarly extend Serwatka 's ADA causation requirement at trial to the summary judgment stage, meaning Fleishman must produce evidence permitting a jury to infer his age was a but-for cause of his termination.

We pause to note that this holding accords with other recent discrimination and employment cases that proceed differently at the summary judgment stage. First, constitutional claims, such as First Amendment retaliation cases, continue to proceed under the Mt. Healthy burden-shifting framework. Greene v. Doruff, 660 F.3d 975, 977 (7th Cir.2011) (citing Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)); see also Gross, 557...