Case Information
*1 Before M ANION , R OVNER , and H AMILTON , Circuit Judges . R OVNER , Circuit Judge
. George Widmar worked for Ryco- line Products, Inc. (which was acquired later by Sun Chemi- cal 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 judg- ment 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 sec-
tions 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
,
We remind district courts of our attempts to rid our circuit’s opinions of language critical of the “self-serving affidavit:”
We hope this discussion lays to rest the misconception that evidence presented in a “self-serving” affidavit is never sufficient to thwart a summary judgment motion. Provided that the evidence meets the usual requirements for evidence presented on summary judgment— including the requirements that it be based on personal knowledge and that it set forth specific facts showing 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 re- quire that testimony be based on personal knowledge. Per- sonal 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 mo-
tion for summary judgment may not rest upon the mere al-
legations 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.
,
Id
at 773.
See also Hill v. Tangherlini
,
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 de- cision 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 in- structions.
(R. 194-1 at p.3). He then goes on to list several more exam-
ples of times when a problem was caused by a different per-
son 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 de-
feat a claim of summary judgment.
See Silverman v. Bd. of
Educ. of City of Chicago,
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 pro- cess at two plants, one in Chicago, Illinois, and one in Ade- lanto, California. Sun Chemical manufactures and sells products used in the printing business such as fountain solu- tions, 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 mate- rials, and purchased the wrong testing materials which, in turn, caused test results which appeared to indicate that ma- terials 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. Wid- mar presented evidence at summary judgment based on his personal knowledge, including his own deposition testimo- ny, 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 re- sponsibility 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 re- sponsibility. 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 di- rect 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 wheth- er 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, Wid- mar’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 evi-
dence that is strong enough, taken as a whole, to allow the
trier of fact to draw the inference of such animus.
Muham-
mad
,
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 in that sec-
tion are descriptions of situations in which Roberts blamed
Widmar for various failings that Widmar demonstrates were
not his responsibility. For example, Widmar claims the fol-
lowing: The problems with the coating products were not a
problem at all, but rather the fault of faulty testing materials;
the failure to premix certain materials was the fault of the
laboratory which failed to include pre-mixing in its instruc-
tions; the problem with the fountain solutions was caused by
the purchasing department purchasing a flawed preliminary
material. He also claims that Roberts was simply incorrect
when he thought that Widmar was not complying with
quality assurance programs and that Widmar did not com-
municate well. We will discuss each of these incidents more
in the context of pretext. The problem for Widmar, however,
is that even if we take each and every one of these facts in
the light most favorable to him and even if we were to at-
tribute a nefarious motive to Roberts’ conduct in each inci-
dent, we have no way of knowing whether Roberts acted
this way because of Widmar’s age. Each and every one of
these issues could arise just as easily if Roberts simply did
not like Widmar’s personality or his style or, for that matter,
his cologne. Title VII does not protect employees from poor
managers or unpleasant and unfair employers. Widmar has
not offered a speck of direct (and by this we also mean direct
or circumstantial) evidence of age discrimination and thus
his attempt to defeat summary judgment in this manner
fails.
See Good v. Univ. of Chicago Med. Ctr., Inc.
,
B. Indirect Method.
Widmar, however, can also survive a motion for sum-
mary judgment by demonstrating discrimination using the
indirect method of proof first articulated in
McDonnell Doug-
las Corp. v. Green
,
Because he was 51 and terminated, Widmar meets the
first and third requirements. The district court did not ana-
lyze elements two and four but instead gave Widmar the
benefit of the doubt and turned to an evaluation of pretext.
A prima facie case, however, must be established and not
merely incanted, and it is beneficial to our body of case law
to address the elements of the prima facie case even if it
seems likely that a plaintiff will fail the pretext inquiry after
burden shifting has occurred.
Montgomery v. Am. Airlines,
Inc.
,
This is just such a case, as Sun Chemical argues that Widmar failed to establish that he was meeting Sun Chemi- cal’s legitimate performance expectations and that his unsat- isfactory performance was the basis for its legal, nondiscrim- inatory decision to terminate. Widmar claims that he was, in fact, meeting the legitimate performance expectations, and that it was, at the very least, a fact issue for a jury to decide.
Once again we note that Widmar spends the bulk of his brief describing the incidents when Roberts blamed him for failures that were not of his making or within his control. Sun Chemical spends the bulk of its brief describing these same incidents, noting how it believed Widmar’s perfor- mance fell flat. We can summarize these arguments by not- ing that it is Sun Chemical’s position that it is a legitimate business expectation that a plant manager be proactive, take responsibility, keep supervisors informed, work collabora- tively to solve problems and produce high quality products for customers. In other words, Sun Chemical takes a “buck stops here” approach in which it required its plant manager to accept responsibility not just where he has direct control, but rather over all aspects of the plant. It wanted Widmar to seek out problem areas, even if they were the “fault” of oth- ers and fix them. As support for this position, it offered its own declared expectations and also Widmar’s own admis- sion that “the major purpose and objectives” of his position as Plant Manager/Manufacturing Manager were to manage “all activities related to manufacturing at [the Chicago and Adelanto plants] and manag[e] all plant related activities at [the Chicago Rycoline plant.]” (R. 192 at 6). Sun Chemical also offered Widmar’s own job summary which stated that his duties included “continually develop[ing] and imple- ment[ing] productivity and process improvements,” and that he was responsible for “decision making regarding Pro- duction Planning, efficiencies and service decisions, … raw material planning, … daily problem solving, [and] service to customers” (R. 185-7, p. 65-66).
Widmar does not claim that the plant failings of which Sun Chemical complained did not occur. As noted above, he claims instead that he was errantly blamed for these short- comings: it was the laboratory’s responsibility to determine the proper formulas and materials for products; it was the purchasing department’s responsibility to buy the appropri- ate materials to be used to test the products; it was the man- ufacturing department’s responsibility only to follow the di- rections of the laboratory. In sum, this is not a disagreement about whether particular actions occurred, it is a disagree- ment about the meaning of the word “fault” or, more pre- cisely, what the scope of Widmar’s responsibilities were and whether Widmar was meeting those expectations of his em- ployer.
For summary judgment purposes, Widmar cannot create
a factual dispute by stating that his job responsibilities ought
to have been something other than what the company ex-
pected. We cannot say whether it was a reasonable expecta-
tion for Sun Chemical to require Widmar to be responsible
for particular functions and actions in the plant in this way.
This court has repeatedly stated that it is not a super-
personnel department that second-guesses employer policies
that are facially legitimate. “[I]t is not the court's concern
that an employer may be wrong about its employee's per-
formance, or be too hard on its employee. Rather, the only
question is whether the employer's proffered reason was
pretextual, meaning that it was a lie.”
Harper v. C.R. England,
Inc.
, 687 F.3d 297, 311 (7th Cir. 2012). A court cannot inter-
fere because an employer’s decision is unwise or unfair.
Sil-
verman
,
Of course, an employer’s stated reason does not neces-
sarily end the discussion. Unfair and unjustified ill-
treatment can be a pretext for discrimination when the em-
ployer treats an employee unfairly because the employee be-
longs to a protected category.
Cung Hnin v. TOA (USA),
LLC
., 751 F.3d 499, 506 (7th Cir. 2014). An employer’s poor
management decisions could, in fact, be a cover for discrim-
inatory action, but poor decisions can just as easily be the
result of deficient management and lackluster business acu-
men. At this stage, once Sun Chemical has articulated a legit-
imate, nondiscriminatory reason for the termination, the
burden toggles back to Widmar to demonstrate that these
poor decisions—blaming him for things for which he was
not at fault—were actually pretext for illegal discrimination.
Matthews v. Waukesha Cnty
,
To meet this burden, however, Widmar “must identify such weaknesses, implausibilities, inconsistencies, or con- tradictions in the defendant’s proffered reasons that a rea- sonable person could find them unworthy of credence and hence infer that the defendant did not act for the asserted non-discriminatory reasons.” Bates v. City of Chicago, 726 F.3d 951, 956 (7th Cir. 2013). The question is not whether Sun Chemical’s assessment of Widmar’s performance was cor- rect, only that it was an honest belief and not a pretext for age discrimination. Id.
Widmar has provided nothing more than speculation that the blaming was a mask for discrimination. Even if Rob- erts blamed Widmar for problems that he knew were not Widmar’s fault, this makes Roberts a bad manager, not a perpetrator of illegal discrimination.
In many ways Widmar’s brief on appeal gives support to Sun Chemical’s complaints, as the oft repeated refrain of Widmar’s brief is that he was not responsible for the various missteps at the plant. Although it is true that Widmar’s abili- ties to correct failings were limited in many ways either by practical application (for example, when things were beyond his control) or by the nature of his job (for example, he claims that because he lacked a degree in chemistry he had no choice but to rely on the scientists in the laboratory for particular information and direction), if Sun Chemical’s le- gitimate expectation was that a plant manager not pass the buck, then Widmar’s brief in which he repeatedly denies re- sponsibility gives further weight to the conclusion that Widmar was not meeting his employer’s legitimate expecta- tions.
For example, both parties spend significant time discuss- ing an incident involving a water-based coating product that was not performing up to customers’ expectations. Accord- ing to Widmar’s version of events, the lab created a formula for the manufacture of the product which the plant followed accordingly and which included instructions about which items needed to be pre-mixed. It did not include MGS1122 on the list of materials to be pre-mixed. In fall 2009, testing on samples indicated that the product made in Chicago did not meet quality specifications, while the product made in the Adelanto plant did. After investigation, the company de- termined that the Adelanto plant was pre-mixing MGS1122, as suggested by the manufacturer of MGS1122, and the Chi- cago plant was not. In Chicago, workers were merely agitat- ing the materials with a forklift as they transported the ma- terial. In the end, it turns out that the product was perform- ing appropriately, but that the cards used for testing the product were faulty. Widmar claims that Roberts knew this but still blamed him for the problem.
As was the case before, this lengthy discussion does not create a material disagreement over facts. Roberts testified that he considered it the responsibility of the plant manager to ensure that all manufacturing procedures including pre- mixing were followed. Widmar does not dispute this, he merely claims that he was following the directions of the lab which did not include a pre-mix directive. Once again, this is a disagreement about the scope of Widmar’s job responsibil- ity which Sun Chemical is entitled to define. We need not determine whether it was wise or fair to place the blame on Widmar for following the laboratory instructions, only that Sun Chemical honestly expected him to do so.
Another example involves the purchasing of micron filter
bags. Sun Chemical claims that Widmar failed to notify Rob-
erts about the purchase of certain filter bags despite being
asked to communicate all such actions to Roberts. Widmar
claims he did not order the micron filter bags of his own vo-
lition, but rather, at the directive of the lab and thus Roberts
could not complain about the purchase. Sun Chemical re-
torts that Roberts criticized Widmar not because he ordered
the bags, but because he did so without informing Roberts
prior to making the purchase as requested. The actual facts
lie somewhere between the two positions. When the lab re-
quested that the company change over to using a particular
filter, Widmar purchased four filters for testing and cc’d
Roberts on an email stating that he “purchased 4 filters for
testing. If the test works out we can make the change. Can I
conclude that this change has been approved?” He then e-
mailed several people, including Roberts, that the testing
had been completed successfully and asked permission to
move forward. In fact, it does appear that Widmar failed to
inform Roberts before purchasing the four test filters, but
did, however, communicate that the four test filters had
been purchased (after the fact), that they had performed as
required, and he then requested permission to move for-
ward and replace the current filters with the new ones. It is
true that were the court reviewing management decisions, it
might determine that the criticism for failing to communi-
cate about the purchase of a mere four test filters was petty
and micro-managing, but this is not the task before a court.
An employer can micro-manage and require as much petty
communication as it wishes. And it may legitimately disci-
pline an employee who fails to conform to the requirement
so long as the discipline is not used as pretext for discrimina-
tion.“ A pretext for discrimination means more than an unu-
sual act; it means something worse than a business error;
pretext means deceit used to cover one’s tracks.”
Kulumani v.
Blue Cross Blue Shield Ass'n
,
Widmar also claims that he was blamed for an ill- performing fountain solution, despite the fact that he sub- mitted plenty of robust evidence that the problems with the solution occurred due to a faulty material rather than any- thing Widmar had done. We need not continue to chronicle each and every episode for which there was a problem at the plant where Roberts blamed Widmar. In each case the result is the same. Widmar claims he is not at fault. Sun Chemical expected him to be more proactive and less finger-pointing in his approach to management and Widmar has failed to offer any evidence that these expectations were pretext for age discrimination.
Next, Widmar argues that evidence that employees out-
side his protected class were assigned his job responsibilities
after he was terminated demonstrates that he meets the
fourth prong of the burden shifting test—that similarly situ-
ated employees outside of his class were treated more favor-
ably. This is the test used when evaluating whether employ-
ees subject to a reduction in force have been treated in a dis-
criminatory manner. Widmar, however, was fired for poor
performance, not as part of a reduction in force, so the real
question to ask is whether younger, similarly situated man-
agers at Sun Chemical who were not performing up to ex-
pectations were also terminated.
See Faas v. Sears, Roebuck &
Co.
,
Of course, hiring younger employees could demonstrate pretext, but in this case Widmar has also failed to present sufficient evidence of this. Sun Chemical denies that Wid- mar’s duties were absorbed by any younger employees at all, but rather were taken on by Toliopoulos, three years old- er than Widmar, and Ralph Zarada, another manager who is six years older than Widmar, with both of them delegating tasks to less senior employees. Widmar claims that the twen- ty-three-year-old Jose Sanchez assumed the bulk of the du- ties that he had performed in the twelve months prior to his termination, and that Angel Ruiz, who was thirty-nine at the time, assumed others. But even if this is true, Widmar also admits that all of the people who reported to him began re- porting to Toliopoulos after he was fired, including Ruiz and Sanchez. (One employee who formerly reported to Widmar began reporting to Zarada.) He also admitted that Toliopou- los and Zarada reported directly to Roberts, just as he had. He does not deny that he had managerial duties and that these older employees assumed some of them. He now as- serts that the bulk of his job was performing lower-level ministerial tasks that were absorbed by the younger non- management workers, Sanchez and Ruiz. But even if we take Widmar’s facts as true, we can only conclude that some of his job duties were absorbed by employees who were older (tasks such as managing less senior employees) and some of his job duties were absorbed by employees who were younger (such as ministerial tasks). Thus even taking the facts in the light most favorable to Widmar (and we agree that it is a stretch that a plant manager/manufacturing man- ager who reported directly to the person overseeing all of manufacturing, purchasing, and the laboratory at the plant spent 90% of his time on ministerial matters), it is still true that Widmar’s duties were re-delegated among two men who were significantly older than Widmar, and two men who were significantly younger. Consequently Widmar has not made a showing that such reassignment was a pretext for discrimination.
For this reason we determine that Widmar has not met his burden of establishing a prima facie case of age discrimi- nation.
C. Severance claim
Widmar makes a separate claim that Sun Chemical also discriminated against him by denying him severance pay. According to Widmar he was not paid the severance due under his contract even though Sun Chemical paid sever- ance to four other employees who had been terminated for cause, including one substantially younger than Widmar. Widmar’s cursory argument is devoid of any case law. His only claim is that four other employees terminated for cause received severance pay and one of those four was under the age of forty. Widmar has not established any direct evidence of discrimination on the severance claim. Nor has he shown any evidence under the indirect method other than stating that “a short term employee who was terminated for cause was under the age of 40” and received severance pay. This is insufficient to establish a claim of discrimination in sever- ance pay.
D. Defamation
Widmar’s final claim is that after Sun Chemical terminat-
ed his employment, Charles Ramsey, a Rycoline manager,
told some co-workers that Widmar had “made a change that
screwed things up for the company.” (Widmar’s opening
brief at 15). This statement, he alleges, was defamatory per
se. This claim, however, was not raised below. In the district
court, Widmar alleged that Ramsey had defamed him by
telling others that he had “intentionally sabotaged Sun
Chemical.” Intentional sabotage is of a completely different
nature than “screwing things up.” The latter includes negli-
gence, minor errors, and perhaps even taking a reasonable
business risk that does not pan out. A plaintiff may not
change theories on appeal and deny the defendant the op-
portunity to develop a defense to the new theory.
Charleston
v. Bd. of Trs. of Univ. of Ill. at Chicago
,
Nevertheless, even if the claim is not waived, it fails.
Widmar makes his claim under the Illinois law of defama-
tion where words are considered defamatory per se if,
among other reasons, they impute inability to perform or
want of integrity in the discharge of duties of office or em-
ployment.
Green
,
For all of these reasons, the judgment of the district court granting summary judgment to Sun Chemical is AFFIRMED.