O'Connor v. DePaul University
| Decision Date | 06 October 1997 |
| Docket Number | No. 94-2683,94-2683 |
| Parties | 75 Fair Empl.Prac.Cas. (BNA) 1052, 120 Ed. Law Rep. 995 Robert O'CONNOR, Plaintiff-Appellant, v. DePAUL UNIVERSITY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert O'Connor, Chicago, IL, pro se.
Joan E. Gale, Staci A. Stobart (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Defendant-Appellee.
Wayne W. Whalen (argued), Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, for Amicus Curiae.
Before FLAUM, KANNE and ROVNER, Circuit Judges.
Robert O'Connor was employed as a carpenter by DePaul University from 1986 until he was discharged in June of 1993. Alleging that he was terminated unlawfully on the basis of his age, O'Connor sued DePaul under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). The district court granted summary judgment in favor of DePaul, and O'Connor appeals. Because O'Connor has failed to raise a factual question as to DePaul's discriminatory intent, we affirm.
The events leading up to O'Connor's termination in June of 1993 took place during the winter and spring of that year and involved several employees in the physical plant department at DePaul's Lincoln Park Campus in Chicago. O'Connor's direct supervisor was head carpenter Thomas Hojnacki, who in turn reported to Robert Riggs, the "Physical Plant Manager for Trade Services." O'Connor's discharge (at least as explained by DePaul) arose out of his relationship with Jill Fritchen, who in June of 1993 was the "Physical Plant Manager of Custodial Services" at DePaul. Although the record does not say so, the titles suggest that Fritchen and Riggs were peers at the level of manager. Both reported to Mark Nuter, the "Director of Physical Plant" for the Lincoln Park Campus. Acquainted since Fritchen became the office manager for the physical plant department in 1987, Fritchen and O'Connor had no social relationship or other contact outside of their employment at DePaul.
In February 1993, O'Connor began writing letters to Fritchen, who was then approximately six months pregnant with her first child. O'Connor explained that his initial letter was intended to offer "motivation and support" to Fritchen, which he believed she might need "[b]ecause of all the rumors that were going around campus" relating to her being pregnant and not married. (O'Connor Dep. at 54.) He stated in the letter that he had thought she was "cold and unfeeling and only interested in her job until [he] realized she was going to keep her baby." (Id.) Fritchen telephoned O'Connor after receiving the letter. Although she sobbed in the course of this conversation, O'Connor did not perceive that his letter had upset her. On March 19, O'Connor attended a baby shower thrown for Fritchen by her colleagues. He gave her a diaper bag, bottles and several other small items for the baby. Fritchen thanked O'Connor for the gift in a short note, which also expressed gratitude for "your words here and there of support and 'fatherly advice,' and all the encouragement you've shown me." (O'Connor 12(n) Ex. 6.) On April 16, O'Connor left a bag on Fritchen's desk that contained two books and a poem about motherhood, along with two personal letters that he had written to her.
Three days later, on April 19, Fritchen met with Riggs to complain about the letters and gifts she had received from O'Connor. Riggs offered to intervene, but Fritchen said that she wished to handle the matter herself, and she did so by talking to O'Connor later that day. As O'Connor recalls this meeting, however, Fritchen did not express displeasure with his gestures, but rather thanked him effusively for his support. O'Connor does remember that Fritchen asked whether he "[w]ould be upset if [she] asked [him] not to write." He asked why she wanted him to stop, and she responded by saying "I don't even really know you." (O'Connor Dep. 46-48.)
Notwithstanding this discussion, O'Connor left Fritchen a card and some cash after she got married on April 30, and Fritchen again responded with a note of thanks. Fritchen subsequently gave birth to her child and took a six-week leave of absence from DePaul. She returned to work on June 28 and received another package from O'Connor the very next day. This one contained four letters that O'Connor had written to Fritchen during her leave, three books, a card, and some money. One of the letters, dated May 26, merits partial quotation here because it belies O'Connor's asserted unawareness that his actions bothered Fritchen or that she wanted him to stop:
I know I said I wouldn't send you any more letters and I did intend to honor your request, but I couldn't let your wedding, Mothers Day and the birth of your baby pass without sending along a couple words of recognition and support. I think they are noteworthy events that deserve comment and I hope you accept my words within the positive framework in which they were written.
Please don't be angry or upset with me for these latest "installments." I know what I promised. I had the need to communicate these thoughts, to get them out, and I didn't see any other outlet.
* * *
I ask for your indulgence, your forbearance and your understanding in this matter, this one time. I offer my apology if anything I have ever said or done has hurt your feelings, caused you embarrassment or offended you in any way. I guess even the best of intentions can become irksome.
Once again, I ask you not to be too severe with me. I don't think I would like to incur your wrath or earn your animosity. I am promising you (Have your heard that before?) now, that these will be the end of the letters--honest!
* * *
Another reason I won't write anymore is that you asked me not to, and I really do want to honor your request. Honestly, though, I am a little hurt that they could make you feel uncomfortable or uneasy. I, myself, don't think they contained anything improper or inappropriate.... The fact that you prefer not to have them, however, for whatever reason, is sufficient enough for me to desist.
* * *
Well, Jill, I thank you for being a good sport to endure "these things" even though I know you feel skeptical about them, or me or both. Just read them and throw them away. Hopefully, you will come away with a kind thought for me, instead of biting my head off for the broken promise.
(O'Connor Dep. Ex. 1.) Another of the letters included in the June 29 package, this one dated May 18, discussed the concern that O'Connor had experienced during Fritchen's pregnancy. He wrote:
I am happy for you that the waiting is over and both of you are healthy. I am relieved for myself, for now I no longer have to worry about the status of mother and child.... Really, Jill, the anxiety was beginning to get to me a bit.
* * *
I had a nightmare of you falling on the ice, which left me a bit unsettled. That may help to explain my obsessive concern about your welfare.
.)
Upon receiving the June 29 package, Fritchen again complained, this time to both Riggs and Nuter. At their request, she prepared a memorandum addressed to Riggs that detailed the situation. She told of the first letters and of her meeting with O'Connor, stating that she "told him that I wanted this correspondence to stop because it was uncomfortable for me and, I felt, totally inappropriate." She continued:
This morning when I arrived at my office, there was a bag of books and letters along with a card that were addressed to me from Bob O'Connor. At this point, I have no choice but to come to you, his manager. Apparently, my request that he cease and desist from acting in this manner has fallen on deaf ears. I stand by my belief that this is very inappropriate behavior in the workplace, particularly given the personal nature of his letters, when we have no personal relationship between us. Please address this issue as you see fit. Apparently, I cannot resolve it myself.
(DePaul Ex. 2.) Later that day, O'Connor was summoned to a meeting with Nuter, Riggs and Hojnacki. The three confronted O'Connor about his gifts and letters to Fritchen, who they said had been upset by his behavior. O'Connor acknowledged that he had left the items but claimed to be unaware that his conduct was unwanted or inappropriate. O'Connor asked that Fritchen join the meeting, but Riggs told him that Fritchen was afraid of him. Riggs also noted a previous instance in which O'Connor had written a series of apparently unwanted letters to another DePaul employee, Denise Omerick.
After O'Connor refused to resign, Riggs told him that he was being terminated for "sexual harassment." Riggs confirmed the discharge in two subsequent letters. Both letters were dated June 29 and both were addressed to O'Connor, but each justified the dismissal in slightly different terms. The letter that was given to O'Connor stated that "[b]ecause of insubordinate activities on your part which you were previously advised to cease, and clearly did not, you are hereby terminated from employment...." (O'Connor 12(n) Ex. 8.) The other letter, which was placed in O'Connor's personnel file, stated that O'Connor had been fired "due to the continued harassment of an employee of the Lincoln Park Campus Physical Plant management staff, after you were advised to cease and desist by this employee." (O'Connor 12(n) Ex. 9.) Shortly after O'Connor, then 43, was terminated, DePaul hired 32-year-old John Korenic to replace him. In December 1993, O'Connor filed this suit in federal district court alleging that his discharge was based on age and constituted unlawful discrimination in violation of the ADEA. 1
We review the district court's grant of summary judgment de novo, and in so doing we construe the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmovant, here...
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