Cunningham v. Rea Magnet Wire Company, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CHRIS D. CUNNINGHAM, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:21-cv-00120-SLC

)

REA MAGNET WIRE COMPANY, INC., )

)

Defendant. )

OPINION AND ORDER

Plaintiff Chris D. Cunningham filed this age discrimination case against his former

employer, Defendant Rea Magnet Wire Company (“Rea”), on March 15, 2021, alleging that it

discriminated against him based on his age in connection with the termination of his employment

in November 2019.1 (ECF 7). Specifically, Cunningham, who was 57 years old at the time,

claims that Rea discriminated against him when it failed to offer him the open hourly job of

Group Leader-Shipping—the duties of which he claims he had been performing for the past

twenty months—after eliminating his salaried position as Distribution Supervisor, and hired a

“young female intern . . . believed to be 28 to 30 years old” for the Group Leader-Shipping

position instead. (ECF 7 ¶¶ 1, 10; see ECF 26).

Rea filed a motion for summary judgment, together with a supporting brief and evidence,

on January 18, 2022, asserting that no reasonable jury could conclude that Rea discriminated

against Cunningham when it otherwise filled the Group Leader–Shipping position, given that

1 Subject matter jurisdiction under 28 U.S.C. § 1331 is proper in this Court. Jurisdiction of the undersigned

Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting. (ECF 11).

Cunningham never applied for the job.2 (ECF 15-16). Cunningham filed a response with

supporting evidence on March 21, 2022 (ECF 21), and Rea timely replied (ECF 22), offering an

additional affidavit in support (ECF 22-1).3 With the Court’s leave (ECF 26), Cunningham filed

a sur-response (ECF 27)4 and Rea filed a sur-reply (ECF 28), making the motion ripe for ruling.

For the following reasons, Rea’s summary judgment motion will be GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND5

A. In March 2007, Rea Hires Cunningham to Work Under Foster

In March 2007, Rea, a manufacturer, hired Cunningham as a Distribution Supervisor—a

salaried position—at its plant in New Haven, Indiana.6 (ECF 15-1 ¶ 4.b; ECF 15-2 at 6, 8-11,

2 Cunningham also alleged in his complaint that Rea discriminated against him based on his age by

consolidating his position as Distribution Supervisor with that of the Purchasing Manager and giving the newly

consolidated position to the Purchasing Manager, who Rea claims was more qualified than Cunningham. (ECF 7).

But after Rea moved for summary judgment asserting that no reasonable jury could conclude that Rea’s proffered

explanation for retaining the Purchasing Manager, who was thirteen months older than Cunningham, was dishonest,

Cunningham conceded this claim at the outset of his response brief. (ECF 21 at 1).

3 In Rea’s reply brief, in addition to arguing that Cunningham never applied for the Group Leader-Shipping

position, Rea asserts that Cunningham had only pled a wrongful termination claim based on Rea’s retaining the

Purchasing Supervisor over him, and that it was “too late” to assert a failure-to-hire claim based on the Group

Leader-Shipping position. (ECF 22). In response, Cunningham filed a motion to strike the reply brief, or in the

alternative, leave to file a sur-response, on the grounds that Rea’s reply brief introduced new evidence and new

arguments. (ECF 23, 24). Rea timely filed a response to the motion to strike (ECF 25), and Cunningham opted not

to reply. On June 22, 2022, the Court denied Cunningham’s motion to strike, but granted his requested alternative

relief of leave to file a sur-response to the summary judgment motion. (ECF 26). In doing so, the Court concluded

that Cunningham had adequately pled an age discrimination claim based on Rea’s failure to offer him the Group

Leader-Shipping job. (Id. at 3-4). To give Rea the last word on its summary judgment motion, the Court sua sponte

afforded Rea leave to file a sur-reply. (Id. at 5).

4 Curiously, despite the Court’s Order on the motion to strike finding that Cunningham had adequately pled

an age discrimination claim based on Rea’s failure to offer him the Group Leader-Shipping job (ECF 26),

Cunningham spends eight pages of his nine-page sur-response brief arguing that he sufficiently pled this claim (ECF

27).

5 For summary judgment purposes, the facts are recited in the light most favorable to Cunningham, the

nonmoving party. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

6 Cunningham’s application said that he was applying for the position of Warehouse Supervisor, but Rea’s

Human Resources Department listed his official title as Distribution Supervisor. (ECF 15-2 at 54, 61-63). The

2

54, 61). Ronald Foster, Rea’s Materials and Distribution Manager, had worked for Rea since

1996 and served as Cunningham’s direct supervisor. (ECF 15-1 ¶ 4.a; ECF 15-2 at 8, 13-14, 18-

19).

B. In March 2016, Rea Divides the Purchasing and Distribution Functions

In March 2016, Rea decided to reorganize its supply chain operations at the New Haven

plant to completely divide the purchasing and distribution functions under two separate

supervisor positions. (ECF 15-1 ¶ 4.c; ECF 15-2 at 14-15, 63). Foster became the Purchasing

Manager over only the purchasing function, and Cunningham remained Distribution Supervisor

but with additional management duties over that department.7 (ECF 15-1 ¶ 4.c; ECF 15-2 at 14-

15, 18, 63). Foster and Cunningham each reported directly to the Supply Chain Manager for the

duration of Cunningham’s employment. (ECF 15-1 ¶ 4.c; ECF 15-2 at 15, 18, 64). As

Distribution Supervisor, Cunningham supervised approximately five to seven hourly

employees—consisting of Material Handlers and one Group Leader-Shipping—who were

represented by a union. (ECF 15-2 at 19). Throughout his entire employment with Rea,

Cunningham was an exempt, salaried employee and was never a member of a union. (ECF 15-1

¶ 4.b; ECF 15-2 at 10-11).

C. In March 2018, Rea Creates the Group Leader-Shipping Position

In March 2018, Rea created the hourly position of Group Leader-Shipping at the New

parties do not dispute that these titles were synonymous. (ECF 16 at 3 n.1; ECF 21 at 4). For ease, the Court will

refer to Cunningham’s former position as “Distribution Supervisor” herein.

7 Cunningham claims that when he got this “promotion,” his title changed to “Warehouse Manager.” (ECF

15-2 at 16, 19). However, his personnel records do not reflect this change because Human Resources concluded that

his title needed to be consistent with a comparable role at other Rea plants, which was “Distribution Supervisor.”

(Id. at 17). As stated earlier, this discrepancy of job title is not material to the outcome here.

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Haven plant. (ECF 22-1 ¶ 4.a). Jeff Kline became the Group Leader-Shipping when it was

created. (Id.).

D. In March 2018, Cunningham Absorbs the Duties of

Shipping Coordinator After Rea Fails to Fill the Vacancy

Also in March 2018, Cunningham began performing the duties of the Shipping

Coordinator after that employee took another job within the plant and Rea did not fill the

position. (ECF 15-2 at 33-34). The Shipping Coordinator was the same as the Group Leader-

Shipping position, except that the Shipping Coordinator job involved supervision. (Id.).

Cunningham testified that his “management duties went away pretty much in March . . . 2018,”

as he started spending most of his time behind a desk and “maybe 10 percent on the shipping

floor.” (Id. at 38). He explained: “There’s no way I could supervise my employees on the

shipping floor if I never went out to the shipping floor.” (Id.). Before March 2018, when he still

had a Shipping Coordinator, Cunningham would spend “maybe 70, 80 percent of [his] day out

on the shipping floor.” (Id.). During his deposition, Cunningham specifically stated that in the

last few years of his employment, he “was not doing the Group Leader job.”8 (ECF 15-2 at 34).

In September 2018, Cunningham began reporting to Joe Haupert, Supply Chain Manager.

(ECF 21-2 at 3-4, 6). In Cunningham’s February 28, 2019, annual review, Haupert wrote:

“Shipping clerk is needed. [Cunningham] has not managed the warehouse for 2 years now once

the help was pulled. [Cunningham] is doing far to[o] much secretarial work.” (ECF 21-3 at 4).

8 Cunningham claims just the opposite in his affidavit—that despite his title as Distribution Supervisor he

was doing the Group Leader-Shipping job for the last few years of his employment. (ECF 21-5 ¶ 3). However, “[i]t

is well established that a party cannot create a genuine issue of fact by submitting an affidavit containing conclusory

allegations which contradict plain admissions in prior deposition or otherwise sworn testimony.” Cooper v. Eaton

Corp., 498 F. Supp. 3d 1053, 1069 (N.D. Ind. 2020) (quoting Richardson v. Bonds, 860 F.2d 1427, 1433 (7th Cir.

1988)). Therefore, this portion of Cunningham’s affidavit cannot be credited.

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Haupert further noted that Cunningham “[w]as hired to be a warehouse supervisor[], but with

departure of clerks, ha[s] not been able to focus on job duties.” (Id. at 4). Haupert’s opinion was

that Rea needed to “free [Cunningham] up to manage the warehouse vs. have him be a

secretary.” (Id. at 6).

E. On October 30, 2019, Kline Accepts a New Position and the Next Day

Rea Internally Posts the Group Leader-Shipping Open Position

In the fall of 2019, Kline was still the hourly Group Leader-Shipping under Cunningham.

(ECF 15-1 ¶ 4.h; ECF 15-2 at 34-35). However, on October 30, 2019, Kline accepted a

Production Supervisor position, which would start in January 2020. (ECF 15-1 ¶ 4.h). Given

Kline’s acceptance, Rea posted the Group Leader-Shipping open position internally on

November 1, 2019. (ECF 15-1 ¶ 4.i; ECF 21-5 ¶ 8; ECF 21-7 at 3). The internal posting stated

that the bid would be “taken down” on November 4, 2019. (ECF 21-7 at 3). Three internal

candidates bid on the job when the posting went up. (Id.). The record is silent as to why none of

them were selected for the position. (See ECF 22-1 ¶ 4.c).

F. In November 2019, Rea Consolidates the Purchasing and Distribution Functions Again

In November 2019, Rea management—specifically, General Manager, Diversified

Operations John McKibben; Plant Manager Patrick Patterson; Vice President of Human

Resources Susan Boyd; and Human Resources Manager Suzi Eberle—decided to eliminate a

salaried position at the New Haven plant to address fixed costs due to business conditions

resulting in declining sales. (ECF 15-1 ¶ 4.e; ECF 21-6 at 5). Rea determined it could again

consolidate oversight of both the purchasing and distribution functions into a single position as a

means of eliminating one salaried position. (ECF 15-2 ¶ 4.e).

Rea states that it deemed Foster the better fit for the consolidated position because he had

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previously held the Materials and Distribution Manager position responsible for both functions,

where Cunningham had no purchasing experience. (Id.; ECF 15-2 at 31). Also, Foster had been

employed by Rea about eleven years longer than Cunningham and had been Cunningham’s

supervisor for several years prior to 2016.9 (ECF 15-1 ¶ 4.e). Therefore, Rea decided to

eliminate Cunningham’s position. (Id.; ECF 15-2 at 23, 71).

G. On November 12, 2019, Rea Terminates Cunningham

On November 12, 2019, Cunningham was informed orally and by letter of the

termination of his employment.10 (ECF 15-1 ¶ 4.e; ECF 15-2 at 34, 71). At the meeting in

which he was terminated, Cunningham asked Haupert and Eberle who was going to take his

position, and he was told that Rea was “going to split it up between a Group Leader and Ron

Foster.” (ECF 15-2 at 25). More specifically, Cunningham was told that Foster was going to

take over the supervisory part of it, and the Group Leader-Shipping would perform the duties

that Cunningham had been performing the last twenty months. (ECF 21-5 ¶ 4).

Rea, however, did not offer Cunningham the Group Leader-Shipping position in

connection with his termination. (Id. ¶ 5). Nor did Cunningham apply for the Group Leader-

Shipping position after he learned of his termination on November 12, even though he knew

there was a Group Leader-Shipping opening. (ECF 15-1 ¶ 4.i; ECF 15-2 at 35; ECF 21-5 ¶ 9).

When asked why not, Cunningham attests:

9 Cunningham testified that he believed he was “equally qualified” for the consolidated position given that

he had more experience in the shipping department than Foster and “could do every job in the office,” but he

conceded that Rea viewed Foster as more qualified than him. (ECF 15-2 at 32).

10 Before the consolidation, Cunningham was over the distribution function, assisted by an hourly Group

Leader-Shipping, and Foster was over the purchasing function. (ECF 15-1 ¶ 4.g). After the consolidation, Foster

was over both the purchasing and distribution functions, assisted by an hourly Group Leader-Shipping.

Consequently, there was one less salaried position at the New Haven plant. (Id.).

6

At the time I was terminated on November 12, 2019, I did not apply for the

opening because I didn’t know it had been posted or if it had been filled or not

and it would have made no sense to me to apply for that position when I had been

performing the job for the last twenty (20) months and . . . Rea . . . fired me and

did not offer me the open position.”

(ECF 21-5 ¶ 9).

On November 26, 2019, Cunningham’s counsel sent a letter to Rea, informing it that

Cunningham was not willing to sign the Confidential Severance Agreement Waiver and General

Release presented to him by Rea on November 12, 2019. (ECF 21-13 at 3). The letter further

informed Rea that it was Cunningham’s “intention to pursue a Charge of Age Discrimination

with the EEOC and through the federal courts if a satisfactory agreement cannot be worked out.”

(Id.). Rea responded by letter on December 4, 2019, denying Cunningham’s allegations of age

discrimination and affirming its position that it had provided him with a reasonable separation

package. (Id. at 4).

H. On December 4, 2019, Rea Externally Posts the Group Leader-Shipping Open Position

On December 4, 2019, Rea posted the Group Leader-Shipping open position externally

on Indeed.com and other external job listing services.11 (ECF 15-1 ¶ 4.i). Cunningham saw the

external job posting on Indeed.com, but did not apply for the position. (Id. ¶ 4.j; ECF 15-2 at

36). When asked why not, he stated: “Because I was just let go from [Rea]. If I wasn’t going to

be offered that position at [the time my Distribution Supervisor position was eliminated], I’m not

sure I would have been hired at this time.” (ECF 15-2 at 36).

11 Rea states that “a new and inexperienced HR Generalist was using a new ADP recruiting tool and

incorrectly copied the wrong job description content into the external posting,” so the posted job description

erroneously included management responsibilities. (ECF 15-1 ¶ 4.i). Rea explains that the Group Leader-Shipping

is a “non-exempt hourly union position and is not permitted under the union contract to perform management

functions.” (Id.). Rea claims it then issued a corrected job description internally on January 1, 2020. (Id.).

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I. On December 19, 2019, Rea Hires Harnish as the Group Leader-Shipping

In December 2019, Kinley Harnish was 28 to 30 years old and a supply chain intern with

Rea, having started her internship six months earlier. (ECF 21-5 ¶ 6; ECF 21-10 at 5). On

December 18, 2019, Haupert sent an email to Foster, Eberle, and Patterson, stating: “FYI...

Kinley said that she would like to be considered for the shipping group lead role what steps do

we need to take next?” (ECF 21-11). The next day, December 19, 2019, Harnish submitted her

application for the Group Leader-Shipping position and she was offered the job that same day,

with an effective date of January 2, 2020. (ECF 15-1 ¶ 4.j; ECF 21-5 ¶ 6; ECF 21-10).

Also on December 19, 2019, Eberle wrote in an email to Haupert, copying Patterson:

“To cover all our bases, Kinley will need to take the test you gave to all candidates. She said

[s]he can take it tomorrow. Can you arrange this and let me know how she did. We will put her

through new hire orientation on 1/3. . . . On Jan 2, she can sit with Jeff.” (ECF 21-12; see ECF

22-1 ¶ 4.e). Harnish took and passed the test the next day. (ECF 22-1 ¶ 4.e). Rea states that

Haupert made the decision to hire Harnish (ECF 21-6 at 6-7), but Patterson and Eberle were

obviously aware of the decision at the time.

By the time Harnish expressed interest in the Group Leader-Shipping position on

December 18, 2022, fifteen external candidates and three internal candidates had applied for the

position.12 (ECF 21-9). Rea claims that these other applicants “had already been ruled out” by

December 18 (ECF 22-1 ¶ 4.d), though the record is silent as to why.

The hourly Group Leader-Shipping position paid $21.37 per hour, which equates to about

12 Although Rea states in its brief that sixteen external candidates applied for the position (ECF 22 at 6), it

appears that one candidate’s name on the candidate list (“Rachel Pasha”) is listed twice (ECF 21-9 at 3).

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$44,450 annually. (ECF 15-2 at 35). Cunningham was earning an annual salary of about

$81,490 when his Distribution Supervisor position was eliminated. (Id. at 27). Rea does not

dispute that throughout his entire employment with Rea, Cunningham “performed [his] job

satisfactorily at or above [Rea’s] expectations, received good Annual Reviews, and was never

written up or disciplined for any performance issues.” (ECF 21-5 ¶ 7). Cunningham testified

that had the hourly Group Leader-Shipping position been offered to him at the time of his

termination, he would have accepted the job. (ECF 21-2 at 20).

II. STANDARD OF REVIEW

Summary judgment may be granted only if there are no disputed genuine issues of

material fact. Payne, 337 F.3d at 770. When ruling on a motion for summary judgment, a court

“may not make credibility determinations, weigh the evidence, or decide which inferences to

draw from the facts; these are jobs for a factfinder.” Id. (citations omitted). The only task in

ruling on a motion for summary judgment is “to decide, based on the evidence of record,

whether there is any material dispute of fact that requires a trial.” Kodish v. Oakbrook Terrace

Fire Prot. Dist., 604 F.3d 490, 507 (7th Cir. 2010) (quoting Waldridge v. Am. Hoechst Corp., 24

F.3d 918, 920 (7th Cir. 1994)). If the evidence is such that a reasonable factfinder could return a

verdict in favor of the nonmoving party, summary judgment may not be granted. Payne, 337

F.3d at 770.

A court must construe the record in the light most favorable to the nonmoving party and

avoid “the temptation to decide which party’s version of the facts is more likely true,” as

“summary judgment cannot be used to resolve swearing contests between litigants.” Id.

(citations omitted). However, “a party opposing summary judgment may not rest on the

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pleadings, but must affirmatively demonstrate that there is a genuine issue of material fact for

trial.” Id. at 771 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

III. DISCUSSION

A. Applicable Law

The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., protects

workers forty years of age and older, “making it unlawful for an employer to fail or refuse to hire

or to discharge any individual or otherwise discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment, because of such individual’s

age.” Marnocha v. St. Vincent Hosp. & Health Care Ctr., Inc., 986 F.3d 711, 718 (7th Cir.

2021) (citations and internal quotation marks omitted). “The ADEA prohibits disparate

treatment, where liability depends on whether the protected trait . . . actually motivated the

employer’s [adverse] decision.” Id. (alterations in original) (citation and internal quotation

marks omitted).

In order to recover under a theory of disparate treatment in the ADEA context, a plaintiff

“must prove, by a preponderance of the evidence, that age was the but-for cause of the

challenged adverse employment action.” Id. (citation omitted); see also Lewis v. Ind. Wesleyan

Univ., 36 F.4th 755, 759 (7th Cir. 2022). That is, “it’s not enough to show that age was a

motivating factor. The plaintiff must prove that, but for [his] age, the adverse action would not

have occurred.” Marnocha, 986 F.3d at 718 (citation and internal quotation marks omitted).

“A plaintiff may prove but-for causation either ‘by introducing direct or circumstantial

evidence that [his] employer took an adverse action against [him] because of [his] age’ or by

invoking the burden-shifting framework set forth in McDonnell Douglas . . . .” Id. (citation

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omitted); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). The McDonnell

Douglas framework requires a plaintiff establish that: “(1) [he] is a member of a protected class,

(2) [he] was meeting the defendant’s legitimate expectations, (3) [he] suffered an adverse

employment action, and (4) similarly situated employees who were not members of [his]

protected class were treated more favorably.” Id. at 718-19 (citation omitted); see also Lewis, 36

F.4th at 759.

“The Seventh Circuit has adjusted the fourth element depending on factual circumstances

of a given case.” Weide v. Swiss Re Life & Health Am., Inc., No. 1:07 CV 328, 2010 WL

3927591, at *5 (N.D. Ind. Oct. 1, 2010). “In a termination case, the fourth element of the

plaintiff’s prima facie case is that the employer sought someone else to perform the same work.”

Id. In a failure-to-hire case, the fourth element is whether “a similarly situated person outside his

protected class was hired for the position instead, or the position remained open.” Sweatt v.

Union Pac. R.R. Co., 796 F.3d 701, 709 (7th Cir. 2015); see also Malone v. City of Terre Haute,

No. 2:14-cv-331-JMS-DKL, 2015 WL 9094303, at *5 (S.D. Ind. Dec. 15, 2015). “When an

employee’s position is eliminated as part of a mini-reduction in force (‘mini-RIF’), the fourth

element of the prima facie case becomes whether the employee’s duties were absorbed by

workers outside [his] protected class.” Lewis, 36 F.4th at 759-60; see also Filar v. Bd. of City of

Chi., 526 F.3d 1054, 1060 (7th Cir. 2008). “The point of the mini-RIF, unlike a true RIF, is that

the job really was not eliminated at all; because the fired employee’s duties were absorbed by

others, they were effectively ‘replaced,’ not eliminated.” Bellaver v. Quanex Corp., 200 F.3d

485, 495 (7th Cir. 2000).

“If the plaintiff establishes this prima facie case, the burden shifts to the defendant to

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articulate a legitimate, nondiscriminatory reason for the adverse employment action, at which

point the burden shifts back to the plaintiff to submit evidence that the employer’s explanation is

pretextual.” Marnocha, 986 F.3d at 718 (citation and internal quotation marks omitted); see also

Lewis, 36 F.4th at 760. To show pretext, a plaintiff “must present evidence suggesting the

employer’s proffered reason . . . [is] a lie.” Marnocha, 986 F.3d at 721 (alterations in original)

(citation and internal quotation marks omitted). To do so, a plaintiff “must identify such

weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s asserted

reasons that a reasonable person could find it unworthy of credence.” Id. (citation and internal

quotation marks omitted).

“Regardless of which path to proof a plaintiff takes, at the summary judgment stage the

court must consider all admissible evidence to decide whether a reasonable jury could find that

the plaintiff suffered an adverse action because of [his] age.” Id. at 719 (citation omitted). That

is, “courts must assess the evidence as a whole, rather than asking whether any particular piece

of evidence proves the case by itself, regardless of whether the court also analyzes the evidence

pursuant to McDonnell Douglas.” Lewis, 36 F.4th at 760 (citation and internal quotation marks

omitted).

B. Cunningham Establishes a Prima Facie Case

Cunningham easily establishes the first three elements of a prima facie case of age

discrimination. He is more than forty years old, Rea does not dispute that he was meeting its

legitimate expectations, and his termination constituted an adverse employment action. The

fourth element, however, requires more discussion. As explained earlier, in a termination case

the fourth element of a plaintiff’s prima facie case is that “the employer sought someone else to

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perform the same work.” Weide, 2010 WL 3927591, at *5. However, when an employee’s job

is eliminated as part of a mini-RIF, the fourth element becomes “whether the employee’s duties

were absorbed by workers outside [his] protected class.” Lewis, 36 F.4th at 759.

With respect to his supervisory duties as Distribution Supervisor, Cunningham concedes

that he cannot establish the fourth element given that his supervisory duties were absorbed by

Foster, who is one year older than him. (ECF 21 at 1). Consequently, Cunningham has

abandoned any claim of age discrimination based on the retention of Foster over him for the

newly consolidated Purchasing and Distribution Supervisor job. Cunningham claims, however,

that in eliminating his salaried Distribution Supervisor position, Rea discriminated against him

based on his age when it failed to offer him the hourly Group Leader-Shipping job and instead

hired Harnish for the position, an intern more than 25 years younger than him. (Id. at 1-3).

During his termination meeting with Haupert and Eberle, Cunningham asked them who

was going to take his job, and they responded that they “were going to split it up between a

Group Leader and Ron Foster.” (ECF 15-2 at 25). More specifically, Cunningham was told that

Foster was going to take over the supervisory part of it, and the Group Leader-Shipping would

perform the duties that Cunningham had been performing the last twenty months. (ECF 21-5 ¶

4).

At the time of Cunningham’s termination then, it was Kline who absorbed the non-

supervisory portion of Cunningham’s duties, at least for the first two months.13 But because

Kline was moving to another position in January 2020, his position as Group Leader-Shipping

was open at the time of Cunningham’s termination. Ultimately, Rea hired Harnish for that job

13 The record does not reveal Kline’s age.

13

on December 19, 2019. Harnish was about 28 to 30 years old, and thus outside of Cunningham’s

protected class. Consequently, Cunningham has established a prima facie case of age

discrimination as to the non-supervisory portion of his duties that were absorbed by Harnish.

B. Rea Articulates a Legitimate, Nondiscriminatory Reason for Failing to

Offer Cunningham the Group Leader-Shipping Position

After a plaintiff establishes a prima facie case of discrimination, the burden shifts to the

defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment

action. Marnocha, 986 F.3d at 719 (citation omitted); see also Lewis, 36 F.4th at 760. Here,

Rea explains that its four decision makers on Cunningham’s termination—McKibben, Patterson,

Boyd, and Eberle—decided that “it needed to eliminate a salaried position at the facility due to

declining sales and that it would do so by consolidating management over the purchasing and

distribution functions under one supervisor,” and that it would retain Foster over Cunningham

because Foster was more qualified. (ECF 16 at 1). As stated earlier, Cunningham no longer

challenges Rea’s reason for deciding to retain Foster over him.

As to the Group Leader-Shipping position, Rea states that these four decision makers

“were not aware Cunningham had allegedly stopped performing management duties,” and thus

they “had no reason to believe he would be interested in the Group Leader-Shipping opening.”

(ECF 22 at 4 (citing ECF 15-1 ¶¶ 4.e, 5)). Rea points out that throughout Cunningham’s

employment with Rea he always held a salaried position, was never a member of the union, and

his title at the time of his termination was Distribution Supervisor. (Id. at 2 (citing ECF 15-1 ¶

4.b; ECF 15-2 at 10-11)). As far as the decision makers knew, Kline had held the position of

Group Leader-Shipping—an hourly, union-represented job—since March 2018, not

Cunningham. (ECF 15-1 ¶¶ 4.b, 4.d, 4.h; ECF 15-2 at 34-35; ECF 22-1 ¶ 4.a).

14

Rea further explains that because the Group Leader-Shipping position is an hourly

position that is part of the collective bargaining unit, Rea “was required to post the job” and

“could not have just unilaterally given the Group Leader-Shipping job to anyone.” (ECF 22-1 ¶

5). As Rea succinctly states: “Cunningham never applied for the position, so he was not

considered for it.” (Id.). As such, Rea has identified legitimate, nondiscriminatory reasons for

not offering the Group Leader-Shipping job to Cunningham—that is, the decision makers who

terminated him had no reason to know he would be interested in the hourly job, Rea could not

just offer the job to anyone because it was required to post the position as part of the collective

bargaining unit, and Cunningham never applied for the job.

C. Cunningham Fails to Establish That Rea’s Reasons Were Pretextual

Once the defendant has established a legitimate, non-discriminatory reason for the

adverse employment action, “the burden shifts back to the plaintiff to submit evidence that the

employer’s explanation is pretextual.” Marnocha, 986 F.3d at 719 (citation omitted); see also

Lewis, 36 F.4th at 760. Thus, to avoid summary judgment, Cunningham must identify

“weaknesses, implausibilities, inconsistencies, or contradictions in [Rea’s] asserted reasons that

a reasonable person could find it unworthy of credence.” Marnocha, 986 F.3d at 721 (citation

and internal quotation marks omitted).

In an effort to establish pretext, Cunningham argues that Rea management “was aware

[he] was performing the Group Leader-Shipping job as it made the decision to not fill it and

someone had to perform the duties.” (ECF 21 at 2). Further, he states that Haupert “expressly

stated in [his 2108 Annual] Review that Cunningham was doing the shipping clerk job and had

not managed the warehouse since Rea did not fill the position.” (Id.). But in making this

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argument, Cunningham glosses over certain facts of record.

First, Haupert did not expressly state in his 2018 annual review that Cunningham “was

doing the shipping clerk job and had not managed the warehouse since Rea did not fill the

position.” (Id.). More precisely, Haupert wrote that Cunningham “has not managed the

warehouse for 2 years now,” was “doing far to[o] much secretarial work,” and that a “[s]hipping

clerk is needed.” (ECF 21-3 at 4). Thus, Haupert never mentioned the Group Leader-Shipping

job in Cunningham’s review.

Further, while Cunningham argues in his brief and states in his affidavit that he had been

performing the Group Leader-Shipping job since March 2018 (ECF 21 at 2; ECF 21-5 ¶ 3), this

directly contradicts his deposition testimony stating that he “was not doing the Group Leader[-

Shipping] job” (ECF 15-2 at 34 (emphasis added)). Cunningham testified, rather, that he had

been performing the duties of “Shipping Coordinator” since 2018 when an employee left that job

and Rea chose not to fill the position.14 (ECF 15-2 at 33-34). Further, it is undisputed that Kline

held the position of Group Leader-Shipping from March 2018 through January 1, 2020, and that

there was only one Group Leader-Shipping job in Cunningham’s department. (ECF 15-2 at 19-

20, 34-35).

As already stated, “a party cannot create a genuine issue of fact by submitting an affidavit

containing conclusory allegations which contradict plain admissions in prior deposition or

otherwise sworn testimony.” Cooper, 498 F. Supp. 3d at 1069 (citation omitted). As such, the

Court cannot credit Cunningham’s claim that he was doing the Group Leader-Shipping job in the

14 Cunningham testified that while the “Shipping Coordinator and the Group Leader jobs are, basically, the

same,” the Shipping Coordinator job involved supervision, and the Group Leader-Shipping job did not. (ECF 15-2

at 33-34).

16

twenty months leading up to his termination. Rather, the credited facts of record reflect that

Cunningham absorbed the duties of the Shipping Coordinator in March 2018, and that Kline was

performing the Group Leader-Shipping job from March 2018 to January 2020.

Most significantly, is undisputed that Cunningham never applied for the hourly Group

Leader-Shipping job even though he knew it was an open position at the time of his termination,

and he later saw the external posting for the job on Indeed.com. (ECF 21-2 at 12, 19). Nor does

Cunningham dispute Rea’s statement that because the Group Leader-Shipping position was an

hourly job that is part of the collective bargaining unit, Rea was required to post the job and

could not have just unilaterally given it to anyone. In fact, unlike Harnish, Cunningham never

expressed interest to Haupert—or anyone else for that matter—about wanting to be considered

for the Group Leader-Shipping open position.

Indeed, Cunningham’s assertion that Rea rejected the eighteen candidates who actually

applied for the Group Leader-Shipping position and that his applying for the job “would have

been futile” because Rea “clearly wanted the much younger person to get it” is mere speculation.

(ECF 21 at 17 (“It appears [Rea] just waited a bit and then, why they thought the time was right,

they hired young Kinley Harnish for the job.”)). But “[c]onjecture or speculation regarding the

employer’s motives cannot be used to defeat a summary judgment motion.” Carson v. Witt, No.

1:17-CV-486-HAB, 2020 WL 1139406, at *6 (N.D. Ind. Mar. 9, 2020) (citation and internal

quotation marks omitted). Cunningham does not offer any evidence about the ages of the

eighteen other candidates or the reasons why they were rejected. “[S]ummary judgment is the

‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would

convince a trier of fact to accept its version of events.” Johnson v. Cambridge Indus., Inc., 325

17

F.3d 892, 901 (7th Cir. 2003) (citation and internal quotation marks omitted).

The only evidence that Cunningham points to in an attempt to show Rea’s alleged

nefarious intent is that: (1) Rea hired Harnish before she took the necessary employment test,

and (2) Eberle’s December 19, 2019, email to Haupert, stating: “To cover all our bases, Kinley

will need to take the test you gave to all candidates. . . .” (ECF 21 at 10-11 (emphasis added)

(citing ECF 21-12)); see also ECF 21 at 17-19; ECF 22-1 ¶ 4.e). Cunningham claims that this

evidence reveals that “Rea . . . had its mind made up that young Kinley Harnish was going to get

this job even without knowing she could pass the test.” (ECF 21 at 11).

But in reply, Rea submits Eberle’s affidavit, explaining that by the time Harnish

expressed interest in the Group Leader-Shipping position on December 18, 2019, all of the other

candidates who had applied for the position had already been ruled out. (ECF 22-1 ¶ 4.d).

Eberle further attests that “[h]ad Harnish not passed the test then she would not have been

hired,” as Harnish’s “official hire date as Group Leader-Shipping was January 2, 2020.” (ECF

22-1 ¶ 4.e).

It is true that Harnish’s hiring process moved quickly. Indeed, Eberle’s words “[t]o cover

all our bases . . . .” in her December 19, 2019, email seem to reflect that. But that is not entirely

surprising given that Harnish had already been serving as a supply chain intern for Rea for the

past six months, and all of the other candidates who had applied for the Group Leader-Shipping

job had already been ruled out. More importantly, in contrast to Harnish, there is no evidence

that Cunningham ever applied for, or expressed any interest in, the Group Leader-Shipping open

position. As such, the speediness of Harnish’s hiring is not a reasonable basis upon which to

conclude that Rea discriminated against Cunningham on the basis of his age in the Group

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Leader-Shipping hiring process. See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 766 (7th Cir.

2006) (“[A]ll evidence belongs in a single pile and must be evaluated as a whole. That

conclusion is consistent with McDonnell Douglas and its successors.”).

In sum, Cunningham has failed to point to evidence from which a reasonable jury could

conclude that Rea’s stated reasons for failing to offer him the Group Leader-Shipping position

and hiring Harnish for the job were “phony” or a “lie.” Russell v. Acme-Evans Co., 51 F.3d 64,

68 (7th Cir. 1995); Mobley v. Wick-Fab, Inc., 1:17-cv-485, 2019 WL 2103437, at *6 (N.D. Ind.

May 13, 2019). Further, a reasonable jury when viewing the record “as a whole” and in the light

most favorable to Cunningham, and affording him all reasonable inferences, could not conclude

that Cunningham would have been offered the Group Leader-Shipping job “but-for” his age. See

Marnocha, 986 F.3d at 719 (“Regardless of which path to proof a plaintiff takes, at the summary

judgment stage the court must consider all admissible evidence to decide whether a reasonable

jury could find that the plaintiff suffered an adverse action because of [his] age.” (citation

omitted)); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (“To establish a disparate-

treatment claim under the plain language of the ADEA, . . a plaintiff must prove that age was the

‘but-for’ cause of the employer’s adverse decision.”). Consequently, Rea’s motion for summary

judgment will be GRANTED.

IV. CONCLUSION

For the foregoing reasons, Rea’s motion for summary judgment (ECF 15) is GRANTED.

The Clerk is DIRECTED to enter a judgment in favor of Rea and against Cunningham.

SO ORDERED. Entered this 25th day of August 2022.

/s/ Susan Collins

Susan Collins

United States Magistrate Judge