Widmar v. Sun Chem. Corp.

• Decision Date: 19 November 2014
• Docket Number: No. 13–2313.,13–2313.
• Citation: 772 F.3d 457
• Parties: George WIDMAR, Plaintiff–Appellant, v. SUN CHEMICAL CORP., et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

772 F.3d 457

George WIDMAR, Plaintiff–Appellant,

v.SUN CHEMICAL CORP., et al., Defendants–Appellees.

No. 13–2313.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 10, 2013.

Decided Nov. 19, 2014.

Ruth I. Major, Attorney, Law Offices of Ruth I. Major, PC, Chicago, IL, for Plaintiff–Appellant.

Susan M. Benton, Attorney, Greensfelder, Hemker & Gale, PC, Chicago, IL, for Defendants–Appellees.

Before MANION, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge.

George Widmar worked for Ryco-line Products, Inc. (which was acquired later by Sun Chemical Corporation) as a Plant Manager for sixteen years. Sun Chemical's National Manufacturing Manager, Keith Roberts, terminated Widmar's employment on November 18, 2009, claiming that the company was unsatisfied with Widmar's performance. Widmar alleges that Sun Chemical unlawfully terminated him because of his age, and then defamed him by speaking ill of his work performance to others. The district court granted Sun Chemical's motion for summary judgment and we affirm.

I.

Ordinarily we begin by reciting the facts in the light most favorable to the plaintiff. In this case, the parties present a mountain of competing facts. Generally, when the fact sections of the opposing briefs read like two unrelated stories, that is a clue for a court to look for material facts that require a trial to resolve. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003). That certainly seemed to be the case here. Moreover, the plaintiff's contention that summary judgment was improper was based, in part, on language in the district court opinion which might be understood as taking facts in a light more favorable to the employer. For example, the district court stated that Widmar's declaration and deposition were “not only self-serving, but also irrelevant in establishing that age was a motivating factor in his termination.” (R. 201, p. 6). Self-serving affidavits can indeed be a legitimatemethod of introducing facts on summary judgment. See Hill v. Tangherlini, 724 F.3d 965, 967–68 & n. 1 (7th Cir.2013); Payne, 337 F.3d at 773.¹

On the other hand, a plaintiff seeking to thwart summary judgment must comply with Federal Rule of Civil Procedure 56(e) and Federal Rule of Evidence 602, both of which require that testimony be based on personal knowledge. Personal knowledge can include reasonable inferences, but it does not include speculating as to an employer's state of mind, or other intuitions, hunches, or rumors. Payne, 337 F.3d at 772.

Moreover, “[a] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal citations omitted). And, of course, any disputed facts must be material. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. (emphasis in original). Evidence supporting or opposing summary judgment must be admissible if offered at trial, except that affidavits, depositions, and other written forms of testimony can substitute for live testimony. Malin v. Hospira, Inc., 762 F.3d 552, 554–55 (7th Cir.2014).

Widmar's facts suffer from several of these deficiencies. For example, in Widmar's recitation of facts, he states, “Mr. Roberts blamed Widmar for many of the problems involving Rycoline products even when Mr. Roberts was aware that the problems were caused by others outside Mr. Widmar's department and outside of his control.” (Widmar opening brief at p. 5). The gist of his case is that Sun Chemical falsely blamed Widmar to cover up for the fact that it was firing him because of his age. To support this, he cites to his own deposition in which he testifies as follows:

Although through the process of resolving the problems Mr. Roberts repeatedly learned that I was not at fault, he nevertheless blamed all of the problems on me in order to support his decision to terminate me. For example, in October of 2009, Mr. Roberts blamed me for inaccurate labels even though the Lab prepared the labels. At this time, he knew that Doug Gillam was responsible for, and controlled, the label instructions.

(R. 194–1 at p. 3). He then goes on to list several more examples of times when a problem was caused by a different person or practice for which he was not in charge. As we will explore in further detail below, the fault with using this type of evidence is that it speculates as to the employer's state of mind and attempts to substitute Widmar's judgment (and thus ours) for that of the employer. Neither type of evidence is sufficient to create a material dispute of fact that will defeat a claim of summary judgment. See Silverman v. Bd. of Educ. of City of Chicago, 637 F.3d 729, 737 (7th Cir.2011) (employer's disagreement with employee's evaluation does not present a genuine issue of material fact). Because Widmar's legitimate facts were intermingled with improper inferences and speculation, we methodically examined the record to determine which facts met the undemanding requirements that we described above.

George Widmar, who was born in 1958, worked as a plant manager for Rycoline (later acquired by Sun Chemical) for sixteen years, beginning when he was 35 and terminating just before he turned 52. He oversaw the manufacturing process at two plants, one in Chicago, Illinois, and one in Adelanto, California. Sun Chemical manufactures and sells products used in the printing business such as fountain solutions, press washes, and coatings.

At the time Sun Chemical acquired Rycoline, on June 14, 2004, Widmar reported directly to Ed Toliopoulos (born in 1955). On November 18, 2008, the company assigned Keith Roberts (born in 1953), the national manufacturing manager, responsibility for managing the manufacture of all Rycoline products. Widmar began reporting to Roberts rather than Toliopoulos.

In 2009, Rycoline began experiencing problems with the quality of some products. Widmar maintains that some of the performance problems occurred because Rycoline changed its formulas to cut costs, purchased defective materials, and purchased the wrong testing materials which, in turn, caused test results which appeared to indicate that materials were not up to standards when, in fact, they were.

Both parties agree that Roberts criticized Widmar and blamed him for the problems with Rycoline products. Widmar presented evidence at summary judgment based on his personal knowledge, including his own deposition testimony, affidavit, and the testimony and emails of others who worked for Rycoline, that the problems were not his fault. Sun Chemical's view, on the other hand, was that Widmar was a member of the Rycoline Leadership Team which was collectively responsible for identifying and solving product quality issues and that, even if he did not have direct responsibility for a particular area or task, Rycoline wanted a manager who could be proactive and work cooperatively with others to solve problems without simply denying responsibility. Sun Chemical's position is that Widmar did not meet its expectations in this regard.

Both briefs contain page after page of explanations about problems that arose at the plant and how those problems were addressed. Widmar's position is that the fact that he was blamed for problems for which he was not or could not be responsible demonstrates evidence of discrimination based on age. In the district court he argued that it was direct circumstantial evidence of discrimination. (R. 159, pp. 13–16). He does not appear to have a section of his brief dedicated to the direct method proof of discrimination on appeal, and it is unclear whether he still wishes to proceed with this method. But in any event, we will evaluate whether Widmar succeeds under that method of proof.

In short, for the purposes of summary judgment, we will assume that the problems identified were not, in fact, Widmar's “fault” in the sense that he caused them or had direct control over them. We will discuss these individual incidents in the context of direct evidence and pretext as we proceed through the opinion.

A. Direct evidence of discrimination.

As we noted, it is difficult to discern whether Widmar is arguing on appeal that he can survive summary judgment under the direct method of proof, under which a plaintiff may demonstrate through direct or circumstantial evidence that the adverse action by the employer was motivated by an impermissible purpose. Muhammad v. Caterpillar, Inc., 767 F.3d 694, 699–700 (7th Cir.2014); Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir.2003). Because a plaintiff will rarely have actual evidence of discrimination, such as a written policy or an admission of impermissible animus, the direct method also allows a plaintiff to point to circumstantial evidence that is strong enough, taken as a whole, to allow the trier of fact to draw the inference of such animus. Muhammad, 767 F.3d at 699–700; Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir.2013). “If the plaintiff can assemble from various scraps of circumstantial evidence enough to allow the trier of fact to conclude that it is more likely than not that discrimination lay behind the adverse action, then summary judgment for the defendant is not appropriate, and the plaintiff may prevail at trial even without producing any ‘direct’ proof.” Morgan, 724 F.3d at 996.

There is one section of Widmar's opening brief in which he criticizes the district court for dismissing his evidence as “self-serving and irrelevant,” but it is unclear whether he thinks this evidence is direct (or circumstantial) or indirect evidence of discrimination. All of his examples...