D'Arco v. R F Beverage, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOSEPH G. D’ARCO,

Plaintiff, No. 22-cv-01784

v. Judge John F. Kness

R F BEVERAGE LLC, D/B/A

ROMANO BEVERAGE

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Joseph D’Arco alleges that his employer, Defendant R F Beverage

LLC, d/b/a Romano Beverage (“Defendant” or “Beverage”), terminated him on account

of his age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”).

29 U.S.C. § 623. Defendant now moves for summary judgment. For the reasons stated

below, Defendant’s motion is granted.

I. BACKGROUND

In June 2021, Defendant, a beverage distribution company, entered an

agreement with Kendall-Jackson Wines (“Kendall-Jackson”), a wine supplier, under

which Defendant would act as Kendall-Jackson’s distributor. (Dkt. 27 ¶ 11.)

Defendant expected that the partnership with Kendall-Jackson would double or triple

its sales. (Dkt. 32 ¶ 7.) With input from Kendall-Jackson, Defendant hired Tim Hill,

Michael O’Brien, and Ken Abolins, former Kendall-Jackson employees, to form a

team that would lead Defendant’s sales force. (Dkt. 27 ¶ 14.) This management team

also included Matt Helms, who was already a Beverage employee. (Id. at ¶ 17.) To

take on the increased sales volume resulting from the Kendall-Jackson deal, the team

restructured its sales routes and territories and set up new divisions within the

company. (Id. ¶ 16.) The team then began a process to select sales representatives to

cover the newly designed routes and territories. (Id. ¶ 17.) In July 2021, Defendant

held interviews with current sales employees who were interested in these sales

positions. (Id. ¶ 22.)

Plaintiff Joseph D’Arco began working for Defendant in 2017 after Defendant

purchased the inventory of Plaintiff’s own distributorship, which Plaintiff had run for

over 13 years. (Dkt. 32 ¶ 1.) Plaintiff was born in 1954 and was approximately 66

years old when the Defendant’s new management team began restructuring its sales

routes and territories in connection with the new Kendall-Jackson partnership. (Dkt.

27 ¶ 4.) While working for Defendant as a sales representative, Plaintiff made

approximately $1,300,000 in sales from June 2020 to June 2021. (Dkt. 32 ¶ 6.)

Plaintiff intended to continue working for Defendant, and he attended an interview

in July 2021. (Id. ¶ 23.) When Plaintiff arrived at the interview site, he inadvertently

interrupted another candidate’s interview when he walked into the interview room.

(Id. ¶ 24.) After Plaintiff left the room and the other candidate’s interview concluded,

several Beverage employees, including Tim Hill, Michael O’Brien, and Tom

Ravensberg, interviewed Plaintiff. (Id. ¶ 25.)

During the hiring process, Beverage employees expressed concerns regarding

Plaintiff’s suitability to continue working for Defendant given the new partnership

with Kendall-Jackson. Matt Helms expressed concern that Plaintiff would have

difficulty transitioning to a different type of sales environment that would involve

larger deals. (Id. ¶ 26.) Michael O’Brien advocated for certain candidates over

Plaintiff, believing they would be better suited for the role. (Id. ¶ 28.) No Beverage

employee mentioned age as a reason not to retain Plaintiff. (Id. ¶ 34.) Michael

Romano, the president of Beverage, received recommendations against Plaintiff’s

retention, and on July 30, 2021, Romano informed Plaintiff that Beverage did not

have a role for Plaintiff going forward. (Id. ¶ 31.) In plain terms, this meant that

Defendant had terminated Plaintiff. (Id.)

Following Plaintiff’s termination, Defendant hired several new sales

employees, some of whom were under 40 years old and some of whom were in their

50s, 60s, and 70s. (Id. ¶ 40.) Defendant also terminated employees besides Plaintiff,

including a 62-year-old sales representative and a 68-year-old sales representative,

and reassigned other sales representatives to different roles within the company.

(Dkt. 32 ¶¶ 24–27.) Plaintiff’s previous customer accounts were divided among

numerous Beverage sales representatives; this group included new hires, some of

whom were over ten years younger than Plaintiff and some of whom were within ten

years of Plaintiff’s age. (Dkt. 23-8 (employee information displaying dates of birth);

Dkt. 27-3 (route data showing which sales representatives covered Plaintiff’s

customer accounts in the year following his termination).)

Plaintiff eventually brought this action in which, through his first amended

complaint (Dkt. 10), he alleges a single count of age discrimination in violation of the

ADEA. After a period of discovery, Defendant now seeks summary judgment in its

favor. (Dkt. 22.)

II. STANDARD OF REVIEW

Summary judgment is warranted only if “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Jewett v. Anders, 521 F.3d 818, 821 (7th

Cir. 2008) (quoting Magin v. Monsanto Co., 420 F.3d 679, 686 (7th Cir. 2005)); see

also Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Rule

56(c) “mandates the entry of summary judgment, after adequate time for discovery

and upon motion, against a party who fails to make a showing sufficient to establish

the existence of an element essential to that party's case, and on which that party

will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. As the “ ‘put up

or shut up’ moment in a lawsuit, summary judgment requires a non-moving party to

respond to the moving party's properly supported motion by identifying specific,

admissible evidence showing that there is a genuine dispute of material fact for trial.”

Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017) (quotations omitted). All

facts, and any inferences to be drawn from them, are viewed in the light most

favorable the non-moving party. See Scott v. Harris, 550 U.S. 372, 378 (2007).

III. DISCUSSION

Under the ADEA, employers are prohibited from discriminating against “any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s age.” Skiba v. Illinois R.R. Co., 884 F.3d

708, 719 (7th Cir. 2018). To prevail on an ADEA claim, a plaintiff must prove that

“age was the ‘but for’ cause of the challenged job action.” Wrolstad v. Cuna Mut. Ins.

Soc’y, 911 F.3d 450, 454 (7th Cir. 2018). There are two analytical approaches for

determining causation under the ADEA: (1) the burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); and (2) the

holistic evidence framework explained in Ortiz v. Werner Enterprises, Inc., 834 F.3d

760 (7th Cir. 2016). See Skiba, 884 F.3d at 719–20. Under either approach, summary

judgment here is appropriate.

A. The McDonnell Douglas Burden-Shifting Framework

Under the established burden-shifting framework of McDonnell Douglas, a

plaintiff must first establish a prima facie case of age discrimination. Brooks v.

Avancez, 39 F.4th 424, 434 (7th Cir. 2022). If the plaintiff establishes a prima facie

case, then the defendant must provide “legitimate, nondiscriminatory reasons” for

terminating the plaintiff, at which point the burden shifts back to the plaintiff to

“demonstrate that [the defendant’s] reason is pretextual—that is, an attempt to mask

a discriminatory reason with a legitimate excuse.” Id. As explained below, although

Plaintiff can establish a prima facie case, Defendant provides a legitimate,

nondiscriminatory reason for Plaintiff’s termination that Plaintiff fails to show is

pretextual.

1. Plaintiff’s Prima Facie Case

To establish a prima facie case of discrimination, a plaintiff “must show that

she: (1) is a member of a protected class; (2) performed reasonably at her job; and

(3) suffered an adverse employment action.” Brown v. DS Servs. of America, Inc., 246

F. Supp. 3d 1206, 1217 (N.D. Ill. 2017) (citing Merillat v. Metal Spinners, Inc., 470

F.3d 685, 690 (7th Cir. 2006)). When a plaintiff’s position has been eliminated entirely

through a reduction in force (“RIF”), the plaintiff must additionally show that she

“was discharged and that other, similarly situated employees who were not members

of the plaintiff’s protected class were treated more favorably.” Bellaver v. Quanex

Corp., 200 F.3d 485, 494 (7th Cir. 2000); see Marnocha v. St. Vincent Hosp. and Health

Care Ctr., Inc., 986 F.3d 711, 720 (7th Cir. 2021) (clarifying the standard in RIF

cases). In the alternative, when a terminated employee’s duties are “absorbed” by

other employees rather than eliminated, a plaintiff must make the less-burdensome

showing that those employees were “not in the protected class.” Merillat, 470 F.3d at

690. This scenario is called a “mini-RIF,” although “the critical inquiry” in

distinguishing a mini-RIF from a RIF “is not determining how many employees were

laid off but whether the duties of those individuals were absorbed by existing staff or

eliminated altogether.” Brown, 264 F. Supp. at 1217 n.6; see Michas v. Health Cost

Controls of Illinois, Inc., 209 F.3d 687, 693–94 (7th Cir. 2000) (applying the mini-RIF

framework “[e]ven though [defendant] discharged multiple employees at the time it

discharged [plaintiff]”).

It is undisputed that Plaintiff can establish the first three elements of a prima

face RIF or mini-RIF case. Plaintiff was 66 years old when he was terminated (Dkt.

27 ¶ 4), Defendant concedes that Plaintiff performed his duties adequately, and

Plaintiff suffered an adverse employment action when he was fired. (Dkt. 22 at 9.)

Plaintiff and Defendant disagree, however, on whether the Court should

analyze the fourth element as either a (maxi-) RIF or mini-RIF. Plaintiff argues that

his termination constituted a mini-RIF. Defendant counters that, because Defendant

terminated multiple employees along with Plaintiff, the full RIF framework should

be applied. (Dkt. 26 at 10; Dkt. 31 at 3–4.) Defendant’s own citations to the record,

however, show that Defendant reassigned other employees to cover Plaintiff’s former

customers. (See Dkt. 23-8.) In effect, Plaintiff’s sales responsibilities were absorbed

rather than eliminated. That Defendant terminated multiple employees is

inapposite. See Michas, 209 F.3d at 693–94. Analysis of Plaintiff’s termination should

therefore proceed under the mini-RIF framework.

To establish a prima facie case in the mini-RIF context, Plaintiff must show

that his duties were absorbed by employees outside the protected class or by

“substantially younger” employees, which the Seventh Circuit has construed to entail

employees who are at least ten years younger than the plaintiff. Merillat, 470 F.3d at

690; Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 321–

22 (7th Cir. 2003) (“The Seventh Circuit has defined ‘substantially younger’ as

generally ten years younger.”). When a plaintiff’s duties are absorbed by employees

who are “substantially younger” than the plaintiff, as well as by employees who are

not, the plaintiff can establish a prima facie case by showing that fewer than “half of

the individuals who assumed [plaintiff’s] job duties were in the protected class[.]” See

Kazhinksy v. William W. Meyer & Sons, Inc., 2003 WL 22735867, *5 (N.D. Ill. Nov.

19, 2003) (citing Bellaver, 200 F.3d at 495). The route data submitted by Plaintiff,

which lists customer accounts covered by Plaintiff in 2021 and the names of the

employees who covered those accounts in 2022, in combination with employee

information displaying those employees’ birthyears, shows that at least half of the

employees who absorbed portions of Plaintiff’s customer accounts were more than ten

years younger than Plaintiff. (Dkt. 23-8; Dkt. 27-3.) The record thus at least raises a

factual dispute as to whether Plaintiff’s responsibilities were absorbed by

“substantially younger” employees. Construing all inferences in favor of the

nonmovant, the Court finds that Plaintiff has established a prima facie case of age-

based discrimination.

2. Defendant’s Legitimate Non-Discriminatory Reason for

Termination

At this point, the burden shifts to Defendant to provide a “legitimate non-

discriminatory reason” for terminating Plaintiff. Skiba, 884 F.3d at 719–20.

Defendant asserts that Plaintiff was fired because Defendant believed, based on

internal recommendations from Beverage employees, that the candidates who

absorbed Plaintiff’s duties were better suited to execute them, age aside. See id. at

724 (that “the individuals ultimately hired were better candidates” constituted a

“legitimate, nondiscriminatory reason[ ] for [the defendant’s] refusal to hire plaintiff

for another managerial role”). Defendant explains that Plaintiff “would have had

trouble transferring from a small distributor to a large distributor, as large

distributors involve a different type of presentation and environment,” while other

candidates appeared “more . . . sales achievement oriented” compared to Plaintiff.

(Dkt. 23-6 at 43, 45 (quotations omitted).) Defendant adds that it found Plaintiff’s job

performance unimpressive, particularly with regards to the margins on his sales and

his existing customer accounts. (Dkt. 31 at 7–8.) Defendant further states that

Plaintiff refused to use certain technologies and made an unfavorable impression on

Defendant’s interviewers when he interrupted another candidate’s interview, which

contributed to the decision not to retain Plaintiff. (Id. at 9.) These reasons—factors

that turn on an assessment of how Plaintiff would transition to a new sales

environment compared to other candidates, independent of Plaintiff’s age—constitute

a legitimate, nondiscriminatory basis for Plaintiff’s firing. Because of this, the burden

shifts to Plaintiff to demonstrate that this reasoning was pretextual.

3. Pretext

To establish that a defendant’s nondiscriminatory reason for termination was

pretextual, a plaintiff “must present evidence from which we may infer that [the

defendant] did not, at the time of his discharge, honestly believe the reason [it] gave

for firing him.” Michas, 209 F.3d at 695. Whether “ ‘the employer’s stated reason was

inaccurate or unfair’ ” is irrelevant to whether the reason was pretextual. Skiba, 884

F.3d at 724 (quoting O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir.

2011)). Rather, a plaintiff must “identify such weaknesses, implausibilities,

inconsistencies, or contradictions in [the defendant’s] asserted reason[s] ‘that a

reasonable person could find it unworthy of credence.’ ” Id. (quoting Coleman v.

Donahue, 667 F.3d 835, 852 (7th Cir. 2012)). With indirect evidence, the plaintiff

“must show that the employer’s reason is not credible or that the reason is factually

baseless.” Perez v. Illinois, 448 F.3d 773, 777 (7th Cir. 2007) (applying the same

burden-shifting framework in a Title VII case). Plaintiff fails to meet this burden.

Disputing Defendant’s contention that Michael Romano terminated Plaintiff

based on recommendations from Tim Hill, Matt Helms, and Michael O’Brien as to

who should cover the newly restructured sales routes, Plaintiff argues that Tim Hill

was “not involved” in the termination decision. (Dkt. 26 at 12.) But Michael Romano

stated in his deposition that Tim Hill was a part of the team that made

recommendations regarding the hiring and retention of sales personnel. (Dkt. 23-2 at

56:14–19.) Romano also stated that Tim Hill described Plaintiff’s interview to him in

connection with the team’s recommendation to hire or retain other candidates over

Plaintiff. (Id. at 82:6–10.) Moreover, Tim Hill testified that Plaintiff’s relationship

with a restaurant called Volare “wasn’t what we were looking for” in assessing

candidates to cover sales routes. (Dkt. 23-7 at 62.) Although Plaintiff insists that the

Volare relationship shows that he would have made a good candidate, Plaintiff cites

no countervailing evidence refuting Hill’s involvement in the termination decision or

the honesty of Defendant’s belief, informed by Hill and others, that there were better

candidates for Defendant’s newly restructured sales routes.

Plaintiff insists that Matt Helms “only raised a generalized concern” about

Plaintiff’s ability to “acclimate to selling large volumes”; in Plaintiff’s view, Helms’s

concern was unfounded and actually made Plaintiff “more fit for the job.” (Dkt. 26 at

12.) Plaintiff does not point to any evidence, however, to suggest that Helms’s concern

did not stem from his honest beliefs regarding Plaintiff’s ability to acclimate to

working with Kendall-Jackson or that Helms’s assessment had no basis in fact.

Whether Plaintiff would have in fact acclimated well is irrelevant to determining

pretext. See Skiba, 884 F.3d at 724.

Arguing that Michael O’Brien’s “generalized belief that there were better

candidates for the routes” was “at odds with reality,” Plaintiff points to Defendant’s

retention of a 39-year-old employee with little to no wine sales experience. (Dkt. 26

at 13.) Defendant submits, however, that the 39-year-old was “hungry, [a] go-

getter, . . . a little bit more . . . sales-achievement orientated” than Plaintiff (Dkt. 31

at 8), and Plaintiff points to no evidence suggesting that Defendant did not honestly

believe that these qualities would make the younger candidate the better choice.

Plaintiff thus fails to undercut the honesty of Defendant’s belief that other candidates

were better suited for the role.

Plaintiff also disputes the honesty of Defendant’s belief that Plaintiff made an

unfavorable impression on Defendant’s interviewers after interrupting another

candidate’s interview in a disheveled manner. (Dkt. 26 at 13.) As evidence of pretext,

Plaintiff provides his own testimony that he did not appear disheveled or act

inappropriately during the interruption. (Id.) The accuracy or fairness of the

interviewers’ perception of Plaintiff during the interview, however, is irrelevant to

whether Defendant’s reasoning is pretextual. See Skiba, 884 F.3d at 724. Moreover,

Defendant fired Plaintiff, not the interviewers, and Plaintiff does not point to any

evidence undermining the honesty of Defendant’s belief that Plaintiff made an

unfavorable impression.1

To undercut the credibility of Defendant’s reasons for firing Plaintiff, Plaintiff

states that “71% of Beverage’s existing full time sales representatives over 50 years

old were either terminated or reassigned . . . from their outside sales routes[.]” (Dkt.

26 at 14.)2 In including employees who were reassigned as well as terminated,

Plaintiff clouds the correlation between age and adverse employment action, as it is

unclear that reassignment constitutes an adverse employment action. This statistic

is also unconvincing, however, because it “fails to properly take into account

nondiscriminatory explanations” for the correlation between an adverse employment

action and age. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000).

Without addressing nondiscriminatory explanations for the correlation between

adverse employment action and age, statistical evidence “does not permit an

1 Plaintiff states in his brief that the interviewers appeared impressed by his sales to

Kinzie Chophouse, a restaurant. (Dkt. 26 at 4.) During his deposition, Plaintiff stated that

the interviewers “asked me about some of my restaurants. And when I mentioned Kinzie

Chop House [sic], they seemed to have a little discussion amongst themselves, like, Wow. He

got into . . . Kinzie Chophouse. Like that was quite an accomplishment.” (Dkt. 23-3 at 47:9–

14.) This statement might suggest that the interviewers believed a customer relationship

constituted an accomplishment, but it does not show that Plaintiff ultimately made a

favorable impression. Indeed, Plaintiff stated in his deposition that the interviewers “didn’t

seem to let on anything” from Plaintiff’s perspective as to the impression he ultimately made.

(Id. at 49:1–2.) At any rate, the statement does not undercut the honesty of Beverage’s belief

that other candidates were better suited for the role, regardless of whether the interviewers

were impressed by Plaintiff’s sales relationship with the restaurant.

2 Plaintiff’s brief presents statistical evidence regarding Defendant’s hiring decisions and

the variance in Defendant’s reasoning for firing Plaintiff in the context of the holistic Ortiz

analysis. But because Plaintiff argues that these facts undermine the credibility of

Defendant’s justification for Plaintiff’s termination, the Court will also address them under

the McDonnell Douglas framework.

inference of discrimination.” Id. at 616–17. Plaintiff’s data fails to rebut the

possibility that, as Defendant alleges with respect to one 68-year-old employee who

was terminated (Dkt. 32 ¶ 25), the expenses incurred by the terminated employees

exceeded the gross profits that they earned. Plaintiff also submits that Defendant

hired 23 new sales representatives between July 1, 2021 and July 22, 2022, and all

but two of those new hires were at least 18 years younger than Plaintiff. (Dkt. 26 at

14.) This statistic similarly fails to consider nondiscriminatory explanations, such as

the superior sales ability of the new hires, and therefore cannot support an inference

of discrimination.3

Plaintiff finally identifies Defendant’s “shifting” reasons for his termination as

evidence of pretext. (Dkt. 26 at 15.) Plaintiff specifically emphasizes that Defendant

stated in its interrogatory responses that Plaintiff was fired due to his refusal to use

certain technology in reporting sales but then amended the response, adding that

Plaintiff failed to impress Defendant’s interviewers. (Id.) Although “[s]hifting and

inconsistent explanations can provide a basis for a finding of pretext[,]” the

“explanations must actually be shifting and inconsistent to permit an inference of

mendacity.” Schuster v. Lucent Technologies, Inc., 327 F.3d 569, 577 (7th Cir. 2003);

see also Hanson v. Crown Golf Properties L.P., 826 F. Supp. 2d 1118, 1122 (N.D. Ill.

2011) (variation in the defendant’s reasons for firing the plaintiff was not evidence of

3 Even if the statistical evidence considered nondiscriminatory explanations for the

correlation between age and adverse employment action, it fails to squarely address whether

Defendant’s reasoning was pretextual, as under the McDonnell Douglas framework,

“statistical evidence is only one small part of a substantial web of evidence indicating

pretext.” Bell v. EPA, 232 F.3d 546, 553 (7th Cir. 2000).

pretext because the defendant’s brief told a “cogent and consistent story about [the

plaintiff’s] firing”). Plaintiff’s refusal to use technology and his impression on

Defendant’s interviewers stem from the consistent explanation that Plaintiff was

relatively less suited to the work environment he would encounter, as compared to

other candidates, if he were retained. Defendant’s amendment to its interrogatory

response therefore does not suggest that Defendant’s reasoning was pretextual.

Because Plaintiff fails to present evidence that Defendant’s justification for

terminating Plaintiff was pretextual, summary judgment in favor of Defendant is

appropriate under the McDonnell Douglas framework.

B. The Ortiz Framework

Summary judgment is likewise appropriate under the Ortiz analysis. Ortiz

requires the Court to look at the evidence of the case holistically to determine

“whether that evidence would permit a reasonable factfinder” to conclude that a

protected characteristic “caused the discharge” of the plaintiff. Ortiz, 834 F.3d at 765.

Under the Ortiz framework, the “ ‘question is simply whether the same events would

have transpired if plaintiff had been younger . . . and everything else had been the

same.’ ” McDaniel v. Progressive Rail Locomotive, 343 F. Supp. 3d 753, 766 (N.D. Ill.

2018) (quoting Skiba, 884 F.3d at 725).

Plaintiff fails to present sufficient evidence to raise a factual dispute that his

age caused his termination. Following the discovery process, Plaintiff can show that

he was a reasonably competent wine salesman, that he was old enough to be targeted

on account of his age under the ADEA, that he was fired by his employer, and that

many, but not all, of the individuals who continued to work for Defendant were

“significantly younger” than Plaintiff (that is, under 57 years old). Plaintiff does not

show by any combination of evidence that a triable issue exists as to whether his age

constituted the “but-for cause” of his termination. Plaintiff points to Defendant’s

adjustment of its interrogatory response explaining why Plaintiff was terminated

(Dkt. 26 at 15), but as discussed above, Defendant’s amendment to its response does

not show that the explanation was pretextual, nor does it establish a causal

relationship between Plaintiff’s age and his termination. And as discussed above, the

statistics Plaintiff submits as evidence of age discrimination do not support such an

inference and likewise do not support a finding that Plaintiff’s age was the cause of

his termination. Indeed, Defendant’s hiring and retention of employees who were 59,

60, and over 70 years old significantly undermine an inference that Defendant

generally discriminated against older employees. (See id. at 14.)

Plaintiff further argues that the Court should question the credibility of

Defendant’s justification for terminating Plaintiff because “no one” from Beverage

has “accept[ed] responsibility for the termination decision[.]” (Id. at 15.) Putting aside

whether this argument addresses the cause for Plaintiff’s termination, Plaintiff

mischaracterizes the record. Michael Romano stated during his deposition that he

based his decision to terminate Plaintiff on his “acceptance of the recommendation by

the team[.]” (Dkt. 23-2 at 87:12–15.) Romano thus took responsibility for the decision

to terminate Plaintiff based on inputs he received from other Beverage employees.

Plaintiff presents no evidence to counter this narrative in insisting that a jury should

nonetheless “reject[ ] Beverage[’s] justification[.]” (Dkt. 26 at 15.) Summary judgment

is therefore appropriate in favor of Defendant applying the holistic review of the

evidence under Ortiz.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment is

granted.

SO ORDERED in No. 22-cv-01784.

Date: March 24, 2025 f Bed) Yea.

JO F. ESS

United States District Judge

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