Alan Cieniuch v. South Oak Dodge, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ALLAN CIENIUCH, )

)

Plaintiff, )

)

vs. ) Case No. 16 C 8356

)

SOUTH OAK DODGE, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Allan Cieniuch has sued his former employer, South Oak Dodge, Inc. (South

Oak) for age discrimination—specifically, disparate treatment—in violation of the Age

Discrimination in Employment Act (ADEA). Cieniuch, who worked as a finance

manager for South Oak, alleges that he was terminated because of his age and

replaced by a significantly younger employee. South Oak has moved for summary

judgment. For the reasons stated below, the Court grants summary judgment in favor

of South Oak.

Background

South Oak Dodge is a car dealership located in Matteson, Illinois. Garrett Guest

has been the general manager of South Oak since the end of 2012. In April 2012, when

Cieniuch was fifty-six years old, he was hired to work as a finance manager in South

Oak's finance department, which is part of the dealership's sales department. After a

customer agrees to buy a car for a particular price, it is the finance manager's job to

contact lenders to find the best financing option and to meet with the customer in order

to sell additional products, including warranties and gap insurance. The sale of

warranties and insurance products increases South Oak's profits, and a financed deal is

more profitable for the dealership than a cash deal.

At the time Cieniuch was hired, South Oak already had one finance manager—

Cieniuch was to be the second. From the time Cieniuch was hired until January 2015,

South Oak operated with two finance managers, in accordance with its longstanding

business model. When Cieniuch started, the other finance manager was Lisa Castillo.

South Oak replaced Castillo with one of its salespeople, Jesus Maldanado, about a year

and a half to two years later. Maldanado worked as a finance manager for only three

months before returning to his sales role. Ryan Ganser replaced Maldanado as finance

manager in mid-2014. In January 2015, Cieniuch was hospitalized, and he remained on

medical leave until March. From March until July 2015, Cieniuch worked on a reduced

schedule; he resumed his full work schedule in July 2015. In January or February 2015,

during Cieniuch's absence, Guest moved salesperson Leo Estrada into the second

finance manager position. There was a collaborative effort by those in the department

to train Estrada.

Instead of returning to South Oak's traditional model when Cieniuch resumed his

full-time schedule in July 2015, Guest kept on all three men—Ganser, Cieniuch, and

Estrada—as finance managers. Guest testified that he made the decision to operate

with three finance managers for two reasons: he was hopeful that South Oak would

grow like it had from 2013 to 2014, and Estrada was doing a "very nice" job as a finance

manager. Def.'s Statement of Facts (Def.'s SOF) Ex. B (Guest Dep.) 27:8-27:9.

Unfortunately, this optimism was short-lived. Although the numbers of new and used

cars sold per month remained relatively steady between February 2015 and September

2015, Guest testified that he was concerned about South Oak's performance indicators

for July through September. Specifically, Guest stated that, in addition to gross

productivity1 being down, in September, the dealership suffered a $280,000 loss.

Guest testified that he decided to terminate Cieniuch's employment at the end of

September or the beginning of October 2015. Guest explained his decision to terminate

Cieniuch as follows:

We were looking at our business in terms of compensation and in terms of

overall gross profit, and it became apparent that we were - - our payroll was

heavy for the gross profit productivity of the sales department. And we

ultimately came to the decision that we did not need three [finance]

managers, and we needed to cut back on expenses given the month we

were having and the fear of the direction of the business.

Id. 45:23-46:7.2 At the time of his termination, Cieniuch was paid 3 percent of the gross

profits generated by the sales and finance department. Ganser, by contrast, was being

paid only 2 percent of sales department profits when Cieniuch was terminated. At that

time, Estrada was being paid at a 1.55 percent rate. Under this compensation structure,

as of October 2, 2015, Cieniuch's year-to-date gross pay was over $30,000 more than

that of either Ganser or Estrada. See Def.'s SOF Ex. F at Exs. 1-3. At the time of

Cieniuch's termination, Ganser was twenty-six years old, and Estrada was thirty-three.

When Guest was asked during his deposition whether there was any reason he

1 Guest defined "gross productivity" or "gross profit productivity" as "the profit generated

by the individual sale of each vehicle, new and used." Guest Dep. at 38:8-38:10.

2 In August 2015, Cieniuch told Guest that South Oak did not need three finance

managers.

decided to terminate Cieniuch as opposed to Ganser or Estrada, he testified that

Ganser and Estrada had the confidence of the sales managers because they felt

Ganser and Estrada "were more likely to push for higher profits per deal" than Cieniuch.

Guest Dep. 46:15-46:16. According to Guest, when South Oak's salespeople made

deals with customers, they would "try to give the finance manager room to sell

something." Id. 46:24-47:1. Guest testified that Ganser and Estrada would attempt to

sell warranties and insurance products beyond those for which the salespeople tried to

set them up—a technique Guest referred to as "sell[ing] beyond the pad"—whereas

Cieniuch tended to sell only the expected package of financial products for any given

deal. Id. 47:11. When asked whether he recalled ever considering the possibility of

terminating either Ganser's or Estrada's employment, Guest said no.

On October 3, 2015, Guest called Cieniuch into his office and told him he was

being terminated. Cieniuch asked if he did anything wrong, and Guest said no. He told

Cieniuch that he could not afford him. Cieniuch testified that he told Guest that he

would take less money—specifically, that he would take what Ganser and Estrada were

being paid—but Guest turned him down. When asked at his deposition whether

Cieniuch offered to take a pay reduction during the October 3 meeting, Guest denied it.3

Guest also testified that before informing Cieniuch of the termination, he discussed the

possibility of terminating him with the sales management team, including Fred Cioffi and

Ray Cioe, but both Cioffi and Cioe deny that any such discussion in advance of the

termination occurred.

3 Despite this denial, South Oak now appears to concede that Cieniuch did, in fact,

make such an offer and that Guest rejected it. See Def.'s Mem. in Supp. of Mot. for

Summ. J. (Def.'s Mem.) at 5.

After Cieniuch's termination, Estrada and Ganser "assumed any tasks that would

have or could have been assigned to [Cieniuch] if he was still employed" by South Oak.

Pl.'s Statement of Additional Material Facts Ex. 1 at 3. Less than four months after

Cieniuch was terminated, Estrada's pay as a percentage of gross profits increased from

1.55 percent to 2.3 percent—still less than the percentage Cieniuch had been paid.

Since Cieniuch's termination, South Oak has hired new salespeople, but it has not hired

a third finance manager. Shortly after Cieniuch's termination, Guest wrote him a letter

of recommendation in which he described Cieniuch as "instrumental in growing the

Finance Department to reach levels of Gross Revenue and Net Profit that were not

realized at any point in the history of South Oak prior to his arrival." Id. Ex. 6. In the

letter, Guest characterized Cieniuch's knowledge of finance and insurance products and

his customer relations skills as "second to none" and also stated that Cieniuch "stood

out amongst his fellow managers." Id.

This sequence of events has led Cieniuch to believe that his age was the real

reason he was terminated while the much younger Ganser and Estrada were kept on as

finance managers. Cieniuch testified that, while he was working at South Oak, certain

salespeople and other managers would refer to him as "the old guy" or "the old man."

Def.'s SOF Ex. C (Cieniuch Dep.) 33:12-33:13. He did not complain at the time

because he thought it was a joke, but in hindsight, he believes these statements, too,

were indicative of age discrimination. In February 2016, Cieniuch filed a charge of

discrimination with the Equal Employment Opportunity Commission (EEOC), alleging

that he was terminated because of his age. After receiving a right-to-sue letter,

Cieniuch filed the present ADEA age discrimination suit against South Oak in August

2016.

Discussion

South Oak has moved for summary judgment. It contends that Cieniuch was

terminated for financial reasons and that he has failed to produce evidence from which

a reasonable inference of age discrimination can be made under the "direct" method of

proof. South Oak also argues that Cieniuch cannot make out a prima facie case of age

discrimination under any version of the burden-shifting framework adapted

from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which is sometimes

referred to as the "indirect" method of proof. See Ortiz v. Werner Enters., Inc., 834 F.3d

760, 766 (7th Cir. 2016).

Summary judgment is proper if there is no genuine dispute regarding any

material fact and the moving party is entitled to judgment as a matter of law. Fed R.

Civ. P. 56(a); Nicholson v. City of Peoria, 860 F.3d 520, 522 (7th Cir. 2017). In

considering a motion for summary judgment, the Court views all facts in the light most

favorable to the nonmoving party and draws all reasonable inferences in that party's

favor. Carson v. Lake County, 865 F.3d 526, 532 (7th Cir. 2017). The Court will not,

however, draw inferences that are supported by nothing more than "speculation or

conjecture." Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1104 (7th Cir.

2012) (citation omitted). Courts must be especially cautious in applying the summary

judgment standard to employment discrimination cases, because such cases often will

turn on intent and credibility issues. See Michas v. Health Cost Controls of Ill., Inc., 209

F.3d 687, 692 (7th Cir. 2000). Nonetheless, "the mere existence of some alleged

factual dispute between the parties" is insufficient to defeat a motion for summary

judgment. Id. (emphasis in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247 (1986). "[A] genuine issue of material fact exists only if there is enough

evidence that a reasonable jury could return a verdict in favor of the nonmoving party."

Brown, 700 F.3d at 1104.

The ADEA prohibits employers from taking adverse employment action against

employees who are forty years of age or older because of their age. 29 U.S.C. §§

623(a)(1), 631(a); Martino v. MCI Commc'ns Servs., Inc., 574 F.3d 447, 452 (7th Cir.

2009). To establish a disparate treatment claim under the ADEA, the plaintiff must

prove that age was the "but-for" cause of the adverse employment action. Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 180 (2009). In Ortiz v. Werner Enterprises, Inc., the

Seventh Circuit clarified that the proper way for a court to assess an employment

discrimination claim on summary judgment is to ask whether the evidence, considered

as a whole, "would permit a reasonable factfinder to conclude that the plaintiff's race,

ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse

employment action." Ortiz, 834 F.3d at 765. The Seventh Circuit was careful to note,

however, that courts remain free to apply the McDonnell Douglas burden-shifting

framework to evaluate circumstantial evidence of but-for causation in the employment

discrimination context. Id. at 766; David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846

F.3d 216, 224 (7th Cir. 2017). Accordingly, the Court will first address whether Cieniuch

has established a prima facie case of age discrimination under the burden-shifting

framework, because that is how South Oak structures the bulk of its argument. See

David, 846 F.3d at 224. The Court will then consider whether, burden-shifting aside, the

cumulative admissible evidence would permit a reasonable factfinder to determine that

Cieniuch was terminated because of his age.

To establish a prima facie case of age discrimination under the McDonnell

Douglas burden-shifting framework, the plaintiff must generally "come forward with

evidence showing that (1) she is a member of a protected class, (2) she was meeting

the defendant's legitimate expectations, (3) she suffered an adverse employment action,

and (4) similarly situated employees who were not members of her protected class were

treated more favorably." Carson, 865 F.3d at 533 (internal quotation marks and citation

omitted). If the plaintiff establishes a prima facie case, the burden shifts to the

defendant employer to articulate a "legitimate, nondiscriminatory reason" for her

termination. Id. (citation omitted). If the employer provides such a reason, the burden

shifts back to the plaintiff to submit evidence showing that the employer's explanation is

pretextual. Id.

Under the burden-shifting framework, the fourth element of the prima facie case

is modified when the termination involves what the Seventh Circuit has dubbed a "mini-

reduction in force" (mini-RIF), where a plaintiff's position is not entirely eliminated, but

her duties are instead "absorbed" by other employees. See, e.g., Bellaver v. Quanex

Corp., 200 F.3d 485, 495 (7th Cir. 2000). In such cases, the plaintiff need not establish

that a similarly situated younger employee was treated more favorably, but rather only

that "her duties were absorbed by younger workers who were retained following the

mini-RIF." Filar v. Bd. of Educ. of City of Chicago, 526 F.3d 1054, 1060 (7th Cir. 2008).

Plaintiffs contend that Cieniuch's termination was a mini-RIF; South Oak

disagrees. In this case, however, it is not necessary for the Court to decide the issue.

Even if one assumes that Cieniuch can make out a prima facie case of discrimination,

he has not pointed to evidence from which a reasonable factfinder could find that South

Oak's proffered reason for terminating him was pretextual. South Oak contends that

Cieniuch was fired because Guest decided they needed to cut costs by terminating one

of the three finance managers and reverting to their two-finance-manager model.

According to South Oak, Guest selected Cieniuch for termination because he was the

highest-paid finance manager by a significant margin and because Ganser and Estrada

had the confidence of the sales managers due to their willingness to push for higher

profits per deal. The burden falls on Cieniuch to show that these reasons were simply a

pretext for firing him.

To establish pretext, a plaintiff must do more than show that the given reasons

for his termination were ill-advised; he must show that the employer did not honestly

believe those reasons. See, e.g., Petts v. Rockledge Furniture LLC, 534 F.3d 715, 726

(7th Cir. 2008). "Evidence that an employer lied about the reasons for an adverse

employment action permits a trier of fact to infer that the decision was actually

motivated by discriminatory animus." Baines v. Walgreen Co., 863 F.3d 656, 665 (7th

Cir. 2017). Cieniuch argues that he has presented sufficient evidence from which a

reasonable factfinder could conclude that the reasons given for his termination were

pretextual. Specifically, Cieniuch contends that a reasonable factfinder could conclude,

based on Guest's rejection of his offer to reduce his salary and his later denial that

Cieniuch made such an offer, that Guest lied about his conversation with Cieniuch to

hide the fact that he actually was terminated because of his age. According to

Cieniuch, the fact that Cioffi and Cioe dispute Guest's testimony that he discussed the

possibility of terminating Cieniuch with them prior to October 3 serves as additional

evidence that Guest is lying to conceal the real reason for Cieniuch's termination.

Cieniuch further contends that Cioffi's and Cioe's denial of Guest's assertions that he

consulted them about the possibility of terminating Cieniuch undermines any assertion

that the management team believed Estrada was performing better than Cieniuch. He

also points to the fact that South Oak hired additional salespeople and increased

Estrada's pay from 1.55 percent to 2.3 percent of gross profits after his termination as

evidence that South Oak's cost-cutting justification was pretextual. Lastly, Cieniuch

suggests that South Oak's 2015 car sales numbers undermine Guest's explanation for

why he originally kept all three men on as finance managers after Cieniuch returned to

work, instead of moving Estrada back to a sales position and reverting to the two-

finance-manager model.

South Oak's decision to increase Estrada's pay and hire additional salespeople

after Cieniuch's termination is not evidence from which a reasonable jury could find that

the reasons given to Cieniuch for terminating him were pretextual when they were

given. And Cieniuch's reference to South Oak's 2015 car sales is likewise immaterial:

though Guest stated that he was anticipating and hoping that the dealership would grow

enough to sustain a third finance manager position, he never said that the 2015 car

sales were the reason for this optimism. What he actually said was that the company

had experienced significant growth from 2013 to 2014, and although it was "kind of

plateauing" from 2014 to 2015, "still there were signs that we were ready for an uptick,

and we were always hopeful that the business was going to continue to grow." Guest

Dep. 27:15-27:20.

With respect to Cieniuch's and Estrada's relative performance, Guest testified

that it was his understanding that Ganser and Estrada had the confidence of the sales

managers because they "were more likely to push for higher profits per deal" than

Cieniuch, but the "main reason" he terminated Cieniuch was because South Oak

needed to cut back on expenses. Id. 46:11, 46:15-46:16. Cieniuch argues that his

glowing recommendation letter and other performance metrics create a dispute of fact

as to whether Estrada's performance was actually perceived to be superior to

Cieniuch's. That factual dispute nonetheless is insufficient to defeat summary judgment

because it does not undermine the assertion that Guest believed, at the time he made

the decision to terminate Cieniuch, that Ganser and Estrada were more likely to push

for higher profits per deal. See Michas, 209 F.3d at 692.

That leaves (1) Guest's rejection of Cieniuch's offer to reduce his salary, (2)

Guest's subsequent denial that Cieniuch made such an offer, and (3) Cioffi's and Cioe's

refutation of Guest's testimony that he discussed the possibility of terminating Cieniuch

with them prior to October 3. Taking the evidence in the light most favorable to

Cieniuch, it is possible to infer from these facts that Guest lied both when he denied that

Cieniuch offered to take a pay reduction and when he said that he discussed the

possibility of terminating Cieniuch with Cioffi and Cioe before actually terminating him.

Nonetheless, not every conflict in testimony raises a triable issue. Petts, 534 F.3d at

727; see also Swanson v. Leggett & Platt, Inc., 154 F.3d 730, 738 (7th Cir. 1998) ("An

otherwise immaterial factual dispute does not give rise to a jury question just because a

jury might disbelieve the defendant's position on that point and so conclude that the

defendant must be lying across the board."); Dugan v. Smerwick Sewerage Co., 142

F.3d 398, 406 (7th Cir. 1998) ("[T]he prospect of challenging a witness' credibility is not

alone enough to avoid summary judgment."). Taken together, the evidence fails to

show that Guest lied about the underlying reasons for Cieniuch's termination, especially

because the reasons given for his termination have been consistent. See Petts, 534

F.3d at 727. A reasonable factfinder could not conclude, on this record, that South

Oak's reasons for Cieniuch's termination were pretextual and instead motivated by age

discrimination. The Court therefore concludes that Cieniuch has failed to establish a

genuine issue of material fact regarding pretext.

Lastly, a cumulative assessment of all the record evidence in this case confirms

that a reasonable jury could not conclude that Cieniuch was fired because of his age.4

See David, 846 F.3d at 227; Ortiz, 834 F.3d at 765. Cieniuch has testified that certain

South Oak salespeople and managers would refer to him as "the old guy" or "the old

man;" although he dismissed the comments at the time, he now believes that they are

evidence of age discrimination. Cieniuch Dep. 33:12-33:13. South Oak moved the

thirty-three year old Estrada from a sales position into a finance manager role in

January or February 2015 to fill in while Cieniuch was on medical leave. Instead of

returning Estrada to his sales position, Guest testified that he decided to operate with

three sales managers—which he had not done before—because he was anticipating

and hoping that the dealership would grow. Cieniuch contends that, from these facts, a

4 The Court rejects Cieniuch's argument that South Oak somehow waived any argument

that the cumulative evidence is insufficient for a reasonable jury to conclude Cieniuch

was fired because of his age by framing its argument primarily in terms of the

McDonnell Douglas burden-shifting framework. After expressly recognizing that, on a

motion for summary judgment, the question is whether the evidence considered as a

whole would permit a reasonable factfinder to conclude that the plaintiff's age caused

his discharge, South Oak argued that the evidence did not support a reasonable

inference of age discrimination. See Def.'s Mem. at 4-6.

reasonable jury could conclude that "Guest actually decided in March 2015 to train

Estrada as Plaintiff's replacement, and accomplished this by keeping Plaintiff on as a

Finance Manager for a period of time to unknowingly train his replacement." Pl.'s Resp.

at 14. In light of his positive recommendation letter and other evidence that there was

no performance-based reason for his termination, Cieniuch further argues that a jury

could reasonably conclude that "it is highly unlikely Defendant would terminate an

admittedly great employee that voluntarily offered to work for less pay unless Guest was

engaging in ageism." Id. Finally, Cieniuch contends that the evidence that Guest lied

about Cieniuch having offered to work for less pay and about consulting with his

management team prior to Cieniuch's termination "reveals a deviation from the asserted

decision making process that can only be explained by a discriminatory motive." Id.

Although a remark indicating animus, bias, or bigotry can raise an inference of

discrimination if it was made by the decision maker and can be connected to the

challenged decision, see Perez v. Thorntons, Inc., 731 F.3d 699, 709 (7th Cir. 2013),

that is not the case here. Cieniuch offers no evidence permitting a finding that the

comments he overheard were connected with the termination decision. In addition, as

previously explained, the fact that car sales were relatively steady for the first nine

months of 2015 do not undermine Guest's explanation for why he decided not to return

Estrada to a sales position after Cieniuch resumed working. And Cieniuch's suggestion

that Guest actually decided to keep three finance managers on initially just so Cieniuch

could train Estrada as his younger replacement is entirely speculative. See Brown, 700

F.3d at 1104.

It is undisputed that Cieniuch was the highest paid finance manager, and he did

not offer to work for less pay until after Guest had already made the decision to

terminate him and, indeed, had told him he was being terminated. Though one would

not expect Cieniuch to be prescient that he was about to be let go, the sequence of

events actually defeats any reasonable inference of discriminatory intent on Guest's part

arising from the level-of-pay issue. Specifically, at the time the evidence shows the

decision to terminate Cieniuch was made, he was the highest paid finance manager; it

was not until after the decision was made and communicated that he offered to reduce

his salary. Any realization that Cieniuch would not actually have to be paid more than

the other finance managers thus could not possibly have been taken into account by

Guest when he decided to terminate Cieniuch. And nothing in the law required Guest to

reconsider his already-made decision once Cieniuch offered to take a pay cut. The

question is whether South Oak had a discriminatory purpose when it terminated

Cieniuch, not whether it could have constructed the decision-making process better or

differently.

In addition, though Guest testified that it was his understanding that Ganser and

Estrada were more likely to "sell beyond the pad," whereas Cieniuch tended to sell only

the expected package of financial products for any given deal, Guest has never claimed

that he based his decision to fire Cieniuch primarily on performance issues. Guest Dep.

47:11. For the same reason, Cieniuch's claim that he was performing well does not

contradict the reasons South Oak has given for terminating him. Cf. Swanson, 154 F.3d

at 737 ("[P]laintiffs' claims that they were more experienced than their replacements and

were performing well do not contradict Leggett's position that they were let go because

Leggett concluded it was not getting its money's worth from competent but relatively

expensive and expendable employees."). And to the extent that Cieniuch argues that

South Oak's decision to terminate him over Estrada was simply unsound, such an

argument is unavailing. See, e.g., David, 846 F.3d at 229 ("Our role . . . is not to inquire

into the wisdom of an employment decision, but simply to determine if 'the employer is

dissembling to cover up a discriminatory purpose.") (quoting Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)).

Assuming that Guest did, in fact, lie about consulting with Cioffi and Cioe about

Cieniuch's termination before the fact and about whether Cieniuch offered to work for

less pay on October 3, the evidence—taken as a whole—remains insufficient to support

Cieniuch's age discrimination claim. See Lane v. Riverview Hosp., 835 F.3d 691, 697

(7th Cir. 2016) ("Even if we assume that Kuzee and the hospital deliberately misled the

EEOC about her role in [an incident involving another employee], that would not by itself

support the further inference of unlawful intent. And the rest of the support here is just

too weak to allow a reasonable inference of discrimination."). Even when all reasonable

inferences are drawn in Cieniuch's favor, a reasonable factfinder simply could not

conclude from this record that Cieniuch was terminated because of his age.

Conclusion

For the foregoing reasons, the Court grants defendant's motion for summary

judgment [dkt. no. 24] and directs the Clerk to enter judgment in favor of defendant and

against plaintiff.

United States District Judge

Date: March 16, 2018

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