Fleishman v. Continental Casualty Co.
698 F.3d 598
| 7th Cir. | 2012Background
- Howard Fleishman worked for Continental Casualty Company from 1984 until termination in 2007 after medical problems related to a brain aneurysm (2003–2005) and a decline in performance.
- Post-aneurysm Fleishman returned in 2005 to work in Continental’s Major Case Unit, receiving raised concerns about his performance and those concerns were relayed by Husnik and Johnson to Izzo.
- Fleishman’s 2005 performance review scored him a 3, making him ineligible for a raise; a 60-day performance improvement plan followed in September 2006.
- By early 2007, Fleishman was not permitted to work on MCU cases; Izzo terminated him after consultations with Johnson and Continental HR personnel.
- Four months later Continental hired a younger attorney (Cremin) and reassigned some of Fleishman’s cases to him.
- Fleishman sued under the ADEA and the ADA; the district court granted summary judgment for Continental, which Fleishman appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| whether Fleishman can prove but-for causation | Fleishman relies on age-based motivations and circumstantial evidence to show but-for discrimination. | Continental argues the record shows non-age-based performance issues and legitimate reductions in work assignments. | summary judgment affirmed; Fleishman failed to show but-for discrimination |
| ADEA standard at summary judgment | Age was a motivating factor in termination. | Gross v. FBL requires but-for causation; no direct or convincing evidence of age bias. | but-for causation required; no adequate evidence established at summary judgment |
| ADA disability status | Aneurysm constitutes a disability limiting major life activities. | Aneurysm did not substantially limit major life activities; no disability at time of termination. | Fleishman not disabled; ADA claim fails |
| Regarded-as-disabled theory | Continental regarded him as disabled due to medical problems. | Evidence shows continued employment and no belief that impairment substantially limited work. | not regarded as disabled |
| ADA accommodation claim | Continental failed to accommodate disability. | No disability, and failure to plead or request accommodations. | claim fails |
Key Cases Cited
- Gross v. FBL Financial Services, Inc., 557 U.S. 167 (U.S. 2009) (but-for causation required for ADEA claims at summary judgment)
- Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010) (ADA but-for causation standard applied at trial/summary judgment)
- Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776 (7th Cir. 2004) (direct-evidence/contemporary discrimination principle)
- Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274 (U.S. 1977) (burden-shifting framework for constitutional claims)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard: no genuine dispute of fact)
- Geier v. Medtronic, Inc., 99 F.3d 238 (7th Cir. 1996) (non-decisionmaker animus and causation considerations)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (framework for indirect discrimination proof)
- Marshall v. American Hospital Ass’n, 157 F.3d 520 (7th Cir. 1998) (connectivity between noncontemporaneous comments and termination)
- Patterson v. Chicago Association for Retarded Citizens, 150 F.3d 719 (7th Cir. 1998) (case-by-case disability impairment analysis; post-termination employment)