The opinion
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 11, 2007
Decided September 20, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3068
DIANNE FOSTER, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 04 C 6458
PRINCIPAL LIFE INSURANCE
COMPANY, Charles P. Kocoras
Defendant-Appellee. Judge.
ORDER
Dianne Foster1 sued Principal Life Insurance Company,2 her former
employer, arguing that it terminated her on the basis of her age in violation of the
Age Discrimination in Employment Act, 29 U.S.C. §§ 621 to 634. The district court
granted summary judgment to Principal, concluding that Foster failed to establish
1
Both briefs consistently misspell the plaintiff-appellant’s first name. The
correct spelling is Dianne.
2
We have reformed the caption of this case to reflect the correct name of the
defendant-appellee.
No. 06-3068 Page 2
her prima facie case and, alternatively, that Principal’s stated reason for her
termination was not a pretext for discrimination. Foster appealed, and we affirm.
In 1990 Foster began working as Office Manager for an insurance company
in Oak Brook, Illinois. Principal acquired the company in 1999, and Foster
continued to work for Principal in the same capacity. Foster’s office sold employee
benefit programs. Foster’s tasks included overseeing administrative staff, working
on group health insurance proposals, and submitting new case submissions to
underwriting. Over time, Foster went from supervising only three staff members to
eleven or twelve. As Office Manager, Foster reported to Dave Kapustka, Vice
President of Group Sales.
Foster’s employment was not without problems. In 1999 she received a final
written warning for calling Kapustka “a fucker”—a retort she made after a sales
meeting in which Kapustka, according to Foster, “dismissed her like a little girl.”
After receiving the warning, Foster submitted her resignation, but Kapustka
ultimately persuaded her not to quit. However, the final warning letter also stated
that Principal had “very serious concerns” about Foster’s job performance. It noted
that Kapustka had had “multiple discussions” with Foster about her “need to
manage the office, organize and begin issuing quotes on time, training of employees,
etc.” The letter also stated, “We cannot afford more customer/employee
complaints.”
After this incident Foster’s performance reviews continued to show some
problem areas but were generally satisfactory. Her 1999 performance review,
issued about six months after the final warning letter, indicated that she did “not
meet requirements” in three of the eight “major position accountabilities.”
However, her performance improved throughout the following year; her review
showed that she met all eight requirements. Her 2001 and 2002 reviews, in a
different format, indicate that she met almost all of Principal’s expectations.
In late 2002 or early 2003, Principal decided to replace the Office Manager
position with two newly created positions, the Client Services Director (CSD) and
the Regional Client Services Director (RCSD). The CSD position was similar to the
Office Manager position but required much more face-to-face contact with
customers and brokers and a great deal of travel, including overnight stays.
Whether Foster applied for this position is disputed; Principal states that Foster
was interviewed, while Foster maintains that she did not apply for it because it was
never posted. In any event, Sandra Mendicino, age 39, took the job. Mendicino,
who had been working as an account executive, was offered the job because of her
relationship with the home office, her ability to work renewals, and the respectful
relationship she had with sales staff and agents. Foster, by contrast, had spent
little time working outside of the office.
No. 06-3068 Page 3
Applicants for the RCSD position were evaluated on their leadership skills,
understanding of the underwriting process, and job experience—particularly in
working with clients and brokers, and the home office. Foster applied for this
position along with two other people, Denise Conner, who was in her 40s, and Cindy
Close, age 32. Principal’s Regional Vice Presidents decided to hire Close after
interviewing the three candidates. They preferred Close because she had been with
Principal for more than eight years, starting as an underwriter and ultimately
managing the underwriting team, and also had strong relationships with the home
office and had worked with customers and brokers on tough renewals. She also had
good leadership skills and fully understood the pricing process.
After missing out on these two positions, Foster accepted a position in
January 2003 as the Senior Marketing Consultant for Principal’s United
Healthcare business. In taking this position, Foster also accepted a salary
reduction from $57,700 to $47,000, which she expressed unhappiness about to her
supervisors on at least one occasion.
In late July, Mendicino sent Foster an email suggesting that she apply for an
Account Executive position that was opening up in Bloomington, Illinois. The
salary for this position was in the low $40,000's, even less than Foster’s current job.
Foster responded that she was not interested in applying for the job.
Not long after this email exchange, Principal eliminated Foster’s position as
part of a reduction in force. Principal’s stated reason for terminating Foster was
that the United Healthcare business had declined. Principal ultimately lost its
contract to sell United Healthcare products. At the time of her termination Foster
was 51 years old.
In early August 2003 Principal hired Allison Olcott, age 25, to fill a
Marketing Specialist position in the Oak Brook office. The position paid between
$33,400 and $43,500, less than Foster’s most recent job. After her termination,
Foster complained to Principal’s Human Resource Generalist Rhonda Kilkenny that
she was disappointed she had not been considered for the position. Kilkenny told
Foster that she did not think Foster would be interested because the position paid
less than what Foster had been earning and was a clerical position two levels below
her position at Principal.
Foster subsequently filed a complaint with the Equal Employment
Opportunity Commission, received a Notice of Right to Sue Letter, and then
commenced this lawsuit, alleging that Principal unlawfully terminated her position
and retaliated against her for complaining about Principal’s hiring of Olcott. The
district court granted Principal’s motion for summary judgment, concluding that
Foster had not shown any evidence of discrimination under the direct or indirect
No. 06-3068 Page 4
burden-shifting method of proof. The court assumed that Foster was meeting
Principal’s legitimate expectations. However, Foster did not establish a prima facie
case because she had not shown that similarly situated employees outside the
protected class were treated more favorably. Even if Foster was able to establish a
prima facie case, the court continued, she did not show that Principal’s stated
reason for her termination—the loss of the United Healthcare contract—was a
pretext for discrimination.
On appeal Foster no longer contends that the reason given for her
termination was pretextual. Instead she focuses her discrimination claim on
Principal’s failure to hire her into the two other available positions in 2003—those
taken by Mendicino and Olcott.
The ADEA prohibits an employer from refusing to hire an individual because
of her age. 29 U.S.C. § 623(a)(1). “To establish a claim under the ADEA, a
plaintiff-employee must show that ‘the protected trait (under the ADEA, age)
actually motivated the employer’s decision”—that is, the employee’s protected trait
must have ‘actually played a role in [the employer’s decision-making] process and
had a determinative influence on the outcome.’” Schuster v. Lucent Techs., Inc., 327
F.3d 569, 573 (7th Cir. 2003). Summary judgment is proper “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.” Fed. R. Civ. P.
56(c).
To establish a prima facie case in a failure-to-hire claim, Foster must
establish that she was over 40, was qualified for and applied for the job, and that
after her rejection Principal considered other applicants. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). This last prong is often referred to as the
“similarly-situated” prong. Employees are similarly situated if they are directly
comparable in all material respects. Patterson v. Avery Dennison Corp., 281 F.3d
676, 680 (7th Cir. 2002) (citations omitted). Plaintiffs are required to show “at a
minimum that the [allegedly similarly situated] employees possessed analogous
attributes, experience, education, and qualifications relevant to the positions
sought.” Raymond v. Ameritech Corp., 442 F.3d 600, 610-11 (7th Cir. 2006) (quoting
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000)); Balderston v.
Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 322 (7th Cir. 2003).
Foster did not establish a prima case with respect to the Client Services
Director job that Principal offered to Mendicino. Foster wants us to consider that
she was better qualified but than Mendicino for the job and therefore similarly
situtated. But we will not second guess Principal’s reasons for hiring Mendicino
into the position—that Mendicino had a good relationship with the home office,
No. 06-3068 Page 5
sales staff, and agents, and an exemplary ability to work renewals—unless Foster
has evidence that her own qualifications are so superior to Mendicino’s that “there
can be no dispute among reasonable persons of impartial judgment that [Foster]
was clearly better qualified for the position at issue.” See Mlynczak v. Bodman, 442
F.3d 1050, 1059 (7th Cir. 2006) (quoting Millbrook v. IBP, Inc., 280 F.3d 1169, 1180
(7th Cir. 2002)). Foster’s evidence of comparative qualifications does not suggest
that she was “clearly better qualified” than Mendicino.
Foster also did not establish a prima facie case with respect to the Marketing
Specialist position that Principal offered to Olcott because Foster did not apply for
this job. Indeed, she expressly told Principal that she wasn’t interest in it. Foster
asks us to ignore her refusal to apply because she did know that her job was in
peril, but her argument is unavailing. See Hudson v. Chi. Transit Auth., 375 F.3d
552, 558 (7th Cir. 2004) (“If a plaintiff does not apply for a job vacancy that is
posted, he cannot make a prima facie case for unlawful discrimination or retaliation
under Title VII unless the plaintiff demonstrates that the employer’s discriminatory
practices deterred plaintiff from applying.”). Moreover, Foster submitted no
evidence regarding Olcott’s education, experience, or other attributes to show that
their qualifications are similarly situtated. See Balderston, 328 F.3d at 322. To the
contrary, the record instead shows that Foster had been working for Principal in a
supervisory capacity and at a pay grade two levels above the Marketing Specialist
position, indicating that she and Olcott were not similarly situated.
Even if Foster were able to make out a prima facie case of discrimination,
she would still have to show that Principal’s reasons for refusing to hire her were a
pretext. McDonnell Douglas, 411 U.S. at 804. Principal’s stated reason for not
offering her the Marketing Specialist position was its belief that Foster would not
accept a position that paid significantly less than what she was earning. Foster
counters that this explanation was pretextual because she had accepted a reduction
in pay earlier in her career at Principal.
“A pretext . . . is a deliberate false-hood.” Kodl v. Bd. of Educ., 490 F.3d 558,
562 (7th Cir. 2007); Forrester v. Rauland-Borg Corp., 453 F.3d 416, 419 (7th Cir.
2006) (citations and internal quotation marks omitted). “[T]o show pretext,
[plaintiff] must show more than [defendant’s] decision was mistaken, ill considered
or foolish, [and] as long as [the employer] honestly believes those reasons, pretext
has not been shown.” Hague v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir.
2006) (internal quotations omitted). Here Foster has simply failed to offer any
evidence suggesting that Principal’s reason for not considering her for the lower
position was dishonest. Principal had suggested that Foster apply for a lower-
paying job—the position in Bloomington—shortly before she was terminated, and
Foster declined their suggestion. Foster had also complained to Principal about
having had to take the lower paying job earlier in her career. Thus Foster gave
No. 06-3068 Page 6
Principal reasons to believe honestly that she would not want to take a lower
paying job again precisely because she had regretted doing so once before. The
honesty of that belief has not been rebutted.
AFFIRMED.