Federal District Court Opinions
LAWHEAD v. CERIDIAN CORPORATION, (N.D.Ill. 11-28-2006) PAUL LAWHEAD, Plaintiff, v. CERIDIAN CORPORATION, Defendant. Case No. 05 C 1871. United States District Court, N.D. Illinois, Eastern Division. November 28, 2006
MEMORANDUM OPINION AND ORDER
MORTON DENLOW, Magistrate Judge
Plaintiff Paul Lawhead (“Plaintiff”) claims that defendant
Ceridian Corporation (“Ceridian”) failed to hire him because
of his age, fifty-five, and he has filed an age
discrimination complaint. Ceridian claims that it did not
hire Plaintiff because he lacked directly related sales
experience and therefore he was not the most qualified
applicant for the position. Ceridian has filed a motion for
summary judgment that is now before the Court. For the
reasons stated herein, the Court grants Ceridian’s summary
judgment motion.
I. BACKGROUND FACTS
The following facts are undisputed or presented in the
light most favorable to Plaintiff when contested.
A. CERIDIAN MAJOR ACCOUNT REPRESENTATIVE JOB POSTING
The Ceridian Human Resources Group (“CHRG”), a division of
Ceridian Corporation, sells human resources services such as
a payroll and tax filing to its corporate customers. PR
Page 2 ¶ 4.[fn1] In January 2001, Plaintiff
responded to CHRG’s job posting for a Major Account
Representative (MAR) position at its Rosemont, Illinois
office. Id. Ceridian’s MARs, the highest level of CHRG
sales employees servicing the Chicago area, meet with
prospective customers’ human resources directors or other
senior management to sell Ceridian’s payroll and human
resources software products. Id. at ¶ 5.
The job posting included a statement of minimum
qualifications for the position:
A Bachelor’s Degree in business/finance/accounting or
equivalent experience required, plus three to five years
of directly related sales experience. Knowledge of Human
Resources or Payroll required. Incumbent must possess
effective oral and written communications skills,
problem-solving skills, and be able to work independently
in order to effectively negotiate sales. Familiarity with
PCs and software required.
Pl. Ex. 4.
B. PLAINTIFF’S INTERVIEWS AT CERIDIAN
CHRG manager Ryan Wormley, age thirty, received
Plaintiff’s application for the MAR position in early 2001.
PR ¶ 9. Plaintiff’s resum?© indicated that he had
previously worked for a different division of Ceridian and
also had experience selling information technology (IT)
tools. Pl. Ex. 7. Based on this experience, Wormley decided
to interview Plaintiff for the position. Pl. Ex. 2. Page 3
During Plaintiff’s interview with Wormley in February
2001, Wormley explored Plaintiff’s sales experience, which
spanned more than twenty years. PR ¶¶ 10, 11.
Wormley asked Plaintiff about his experience at Ceridian in
1996 and was disappointed to learn that, although Plaintiff
had worked in sales, he had not sold the company’s payroll
or human resources products. Id. at 10.
Wormley also explored whether Plaintiff had any other
experience selling payroll and human resources products. Id.
at ¶ 9. Plaintiff indicated that he did not have any
experience selling products strictly for the purposes of
payroll or human resources. PR ¶ 12. Plaintiff did
have experience selling a software package called MCBA,
however, which included Enterprise Resource Planning (ERP),
a human resources module. Id. at 13. Plaintiff’s experience
selling ERP was nearly twenty years ago. Id. Plaintiff sold
fewer than a dozen MCBA packages and could not remember if
the packages included ERP. Id. Plaintiff’s resum?© reflected
additional experience in IT sales and marketing dating back
to 1987. Pl. Ex. 7. Plaintiff possessed a Bachelor’s Degree
in Religion. Lawhead Dep. at 7.
Following the first interview, Plaintiff was invited to
meet with Ceridian MAR Roger Morris, age fifty. PR ¶
17. During this meeting, Plaintiff asked Morris if he would
fit in well at Ceridian. DR ¶ 14. According to
Plaintiff, Morris stated that Plaintiff and he were older
than most MARs in Ceridian’s Rosemont office, most of whom
were in their thirties. Id. Following his meeting with
Plaintiff, Morris reported to Wormley that Plaintiff lacked
experience selling payroll or human resources products. PR
¶ 18. Morris also told Wormley that Plaintiff would
make a “good addition to the team.” DR ¶ 15. Page 4
C. CERIDIAN’S HIRING DECISION
Following Plaintiff’s interview with Morris, Wormley made
the decision to discontinue Plaintiff’s interview process.
PR ¶ 19. Ceridian eventually hired David Coyner, age
thirty-three, for the MAR position in June 2001. Id. at
¶ 20. Coyner possessed an MBA and three years of
experience selling E-Benefits programs, a human resources
product, in two previous jobs. Id. By contrast, Plaintiff
possessed a Bachelor’s degree in Religion and had only
limited experience selling human resources or payroll
software years ago. Lawhead Dep. at 7; Pl. Ex. 7.
After Ceridian failed to hire him, Plaintiff submitted a
discrimination claim to the Illinois Department of Human
Rights (IDHR) alleging discrimination on the basis of age
and religion. Def. Ex. 7. Ceridian’s statement to the IDHR
listed the reasons why it did not offer the MAR position to
Plaintiff:
Mr. Lawhead was not the most qualified candidate for the
Major Account Representative Position. Mr. Lawhead did
have sales experience selling IT tools which qualified him
for an informational interview. He did not have previous
sales experience selling Human Resource/Payroll/Benefits
or Time and Attendance software calling on Chief Financial
Officers or Vice Presidents of Human Resources. The
position of Major Account Representative requires
experience selling Human Resources/Payroll software or
related software sales experience. [Other Ceridian MARs]
were more qualified for the Major Account Representative
than Mr. Lawhead.
DR ¶ 1; Pl. Ex. 2 at ¶ 3. In another statement
to the IDHR, Ceridian stated that Plaintiff “was not the
most qualified candidate for the position” because “he did
not have previous software or technical sales experience
calling on Chief Financial Officers or Vice Presidents of
Human Resources.” Pl. Ex. 3 at ¶ 4. Page 5
In his deposition, Wormley reiterated that Plaintiff did
not have experience selling payroll and human resources
software. Pl. Ex. 8 at 69. Wormley stated that Plaintiff
had “plenty of experience” selling to high level executives
and that a lack of such experience was not the basis for
his decision not to hire Plaintiff. Wormley Dep. at 65.
Rather, Plaintiff’s lack of direct experience with human
resources and payroll software was the basis for Wormley’s
decision not to hire Plaintiff. Id. at 75.
D. OTHER MARS AND APPLICANTS
In addition to Coyner, Wormley hired three other MARs in
2001: Gerald Brown, age thirty-three, in February 2001;
Timothy Glenn, age thirty-seven, in June 2001; and Korey
Wrobleski, age thirty-two, in August 2001. DR ¶ 11.
Brown had experience selling software that dealt with
outsourcing issues to chief financial officers. Pl. Ex. 2.
Glenn had experience selling time and attendance software
for Kronos, a Ceridian competitor. Id. Wrobleski had worked
for Automatic Data Processing, also a Ceridian competitor,
and had previously sold payroll and human resources
products for Ceridian. Id. At least one other Ceridian MAR,
Kevin Winter, age thirty-four, who was not hired at the
same time Plaintiff applied for the position or at the same
office that interviewed Plaintiff, did not have human
resources or payroll sales experience when he was hired by
Ceridian. DR ¶ 7.
Ceridian interviewed several other candidates for MAR
positions in 2001. Id. at 8. These candidates fell both
within and outside the ADEA protected class (older than age
forty). Ceridian considered Eric Gleason, who was younger
than Plaintiff, a “strong” candidate with a “strong track
record selling IT related products.” Id. at ¶ 7.
Gleason Page 6 advanced to a final interview, even though,
according to Wormley’s interview notes, he did not have
industry experience. Id., Pl. Ex. 10.
At least two other applicants in the protected class
applied for the MAR position in 2001. DR ¶¶
8, 9. Steve Albach, who was then forty-four, did not
advance past his first interview with Wormley. Id. at
¶ 8. In his declaration, Albach stated he had four
years of experience selling and servicing customers in the
Chicago market in human resources and payroll software and
business services. Pl. Ex. 12 at ¶ 3. Wormley stated
in his deposition that while Albach had some related sales
experience, it was not the type of experience sufficient to
qualify him for the job. Wormley Dep. at 39. During
Albach’s interview with Wormley, Wormley asked if Albach
had the “stamina” for the job, which required “a lot of
hoofing it.” Pl. Ex. 12 at ¶ 4.
Martin Fenton, who appeared from his resum?© to be in his
forties, also did not proceed past his first interview,
despite a statement on Fenton’s resum?© that indicated he
had sixteen years of sales experience, including sales of
human resources and payroll applications. DR ¶ 9;
Pl. Ex. 14. Wormley stated in his deposition that Fenton’s
actual human resources and payroll sales experience was
“very light.” Wormley Dep. at 42. Wormley also stated that
he believed Fenton’s experience was more as a consultant
than as a sales representative. Id. at 43.
Of the nine people working under Wormley through 2001,
only one, Morris, was older than forty years old. DR
¶ 10. The remaining eight employees ranged in age
from thirty to thirty-seven. Id. Of the thirteen employees
hired prior to 2001 by Ceridian, two Page 7 were older
than forty. Id. at 12.
E. THE LITIGATION
Plaintiff filed a complaint alleging that Ceridian’s
failure to hire him violated the Age Discrimination in
Employment Act (“ADEA”). Compl. at ¶ D. The
complaint included both a disparate treatment theory and a
disparate impact theory of age discrimination based on
Ceridian’s failure to hire Plaintiff. Id. at ¶ 1.
Ceridian has filed a motion for summary judgment. The
parties engaged in oral argument on November 14, 2006. At
the oral argument, Plaintiff stated that he was no longer
proceeding on a disparate impact theory.
II. LEGAL STANDARDS
A. SUMMARY JUDGMENT STANDARD
A court may grant summary judgment when 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 judgment as a matter of law.”
Fed.R.Civ.P. 56(c). A genuine issue of material fact exists
when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, 477 U.S. 242, 255 (1986). The movant bears
the burden of establishing that there exists no genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Paul v. Theda Medical Center, Inc., 465
F.3d 790, 793 (7th Cir. 2006). The party bearing the burden
of proof on an issue at trial, however, may not rest on the
pleadings, but must “designate specific facts showing that
there is a genuine issue for trial.” Celotex, 477 U.S. at
324. The evidence is viewed in the light most favorable to
the non-movant Page 8 and “all justifiable inferences are
to be drawn in his favor.” Anderson, 477 U.S. at 255.
B. AGE DISCRIMINATION IN EMPLOYMENT ACT
The ADEA prohibits an employer from failing to hire an
employee on the basis of his age. 29 U.S.C. §
623(a)(1). To succeed under a disparate treatment theory,
an ADEA plaintiff must show that “the employee’s protected
trait actually played a role in [the decision-making]
process and had a determinative influence on the outcome.”
Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). The
plaintiff may do so using either a direct or indirect
method of proof. Cerutti v. BASF Corp., 349 F.3d 1055, 1060
(7th Cir. 2003).
Under the direct method, a plaintiff must “show by way of
direct or circumstantial evidence, that his employer’s
decision to take an adverse job action against him was
motivated by an impermissible purpose,” such as age.
Cerutti, 340 F.3d at 1061. “Direct evidence is evidence
that, if believed by the trier of fact, would prove
discriminatory conduct on the part of the employer without
reliance on inference or presumption. In short, direct
evidence essentially requires an admission by the
decision-maker that his actions were based upon the
prohibited animus.” Id.
“A plaintiff can also prevail under the direct method of
proof by constructing a `convincing mosaic’ of
circumstantial evidence.” Id. That evidence can be (1)
“suspicious timing, ambiguous statements . . ., behavior
toward or comments directed at other employees in the
protected group, and other bits and pieces from which an
inference of discriminatory Page 9 intent might be drawn,”
(2) evidence “that employees similarly situated to the
plaintiff . . . received systematically better treatment,”
and (3) “evidence that the plaintiff was qualified for the
job in question but passed over in favor of . . . a person
not having the forbidden characteristic and that the
employer’s stated reason for the difference in treatment is
unworthy of belief, a mere pretext for discrimination.”
Walker v. Board of Regents of the University of Wisconsin
System, 410 F.3d 387, 394 (7th Cir. 2005). The Seventh
Circuit has noted that the third type of circumstantial
evidence is “substantially the same evidence” as required
under the indirect method. Gorence v. Eagle Food Centers,
Inc., 242 F.3d 759, 762 (7th Cir. 2001).
Under the indirect method adapted from McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), courts use a
burden-shifting approach. See Raymond v. Ameritech Corp.,
442 F.3d 600, 610 (7th Cir. 2006). First, a failure-to-hire
plaintiff must establish the following elements of the
prima facie case: (1) he was a member of a the protected
age group (forty or older); (2) he applied for and was
qualified for the position; (3) he did not receive the
position; and (4) those who were hired were not in the
protected group and had similar or lesser qualifications
for the position. Zaccagnini v. Charles Levy Circulating
Co., 338 F.3d 672, 675 (7th Cir. 2003). If the plaintiff
fails to make out a prima facie case, courts generally need
not address the remaining steps in the McDonnell Douglas
framework. See e.g. Velez v. City of Chicago, 442 F.3d
1043, 1050 (7th Cir. 2006); Contreras v. Suncast Corp., 237
F.3d 756, 761 (7th Cir. 2001); but see Herron v.
DaimlerChrysler Corp., 388 F.3d 293, 300 Page 10 (7th Cir.
2004) (“merger of the legitimate expectations requirement
with the pretext analysis is acceptable in limited
circumstances,” such as termination cases where an
employee’s failure to meet the employer’s expectations is
the employer’s proffered reason for terminating the
employee).
By satisfying the prima facie case, however, the plaintiff
creates a rebuttable presumption of age discrimination and
the burden shifts to the employer to come forward with a
legitimate, non-discriminatory reason for failing to hire
the plaintiff. Id. Finally, if the employer provides such a
reason, the plaintiff must show that there is a question of
fact as to whether the proffered reason was a pretext.
Gusewelle v. City of Wood River, 374 F.3d 569, 575 (7th
Cir. 2004). The Seventh Circuit has defined pretext as
meaning that the employer’s explanation is factually
baseless, was not the real motivation for the decision, or
was insufficient to motivate the decision. Id.
III. DISCUSSION
A. DIRECT METHOD
Plaintiff has not put forth any direct evidence that
Ceridian did not hire him because of his age, such as a
direct statement revealing age discrimination. Plaintiff
must, therefore, point to circumstantial evidence under the
direct method, such as evidence of ambiguous statements,
evidence that similarly situated employees were treated
differently, or evidence that Ceridian’s stated reason for
failing to hire him is a mere pretext for discrimination.
Walker, 410 F.3d at 394. Page 11
First, Plaintiff presents two sets of comments that could
be construed as “ambiguous statements.” Plaintiff asserts
that in his second interview, Morris commented that most of
Ceridian’s MARs were younger than Morris and Plaintiff. DR
¶ 14. Further, Plaintiff presents evidence that
during Wormley’s interview of Albach, another MAR candidate
in 2001, Wormley made allegedly age-related comments about
the “stamina” and “hoofing it” required for the position.
Id. at ¶ 13.
For ambiguous statements to constitute sufficient
circumstantial evidence under the direct method, they must
“give rise to a reasonable and straightforward inference
that the employer has relied on a proscribed factor in
taking action against the employee.” Luks v. Baxter
Healthcare Corp., ___ F.3d ___, 2006 WL 3113591 (7th Cir.
2006). Morris’ and Wormley’s statements here simply do not
give rise to such an inference. Remarks may be evidence of
intentional discrimination if they are “made by the
decisionmaker, or those who influence the decisionmaker.”
Dandy v. United Parcel Service, Inc., 388 F.3d 263, 272
(7th Cir. 2004). Morris’ comments were not those of a
decision-maker. Moreover, Morris ultimately gave a positive
recommendation of Plaintiff to Wormley, who was the
decision-maker. Finally, Wormley’s comments to Albach are
not so clearly age-based as to give rise to a
“straightforward inference” that Wormley’s decisions not to
hire were based on age.
Second, Plaintiff has not put forth evidence that
similarly situated candidates were treated differently.
Indeed, Plaintiff contends that other candidates had either
more experience (such as Albach, who had four years of
payroll and human resources sales Page 12 experience, or
Fenton, who stated he had sixteen years of payroll and
human resources sales experience) or less experience (such
as Gleason, who did not have any payroll or human resources
experience) than Plaintiff. Thus, these candidates were not
“similarly situated.” See e.g. Greer v. Bd. of Education of
City of Chicago, 267 F.3d 723, 728 (7th Cir. 2001) (stating
that comparison employees must be similarly situated “in
all material respects”); Radue v. Kimberly-Clark Corp., 219
F.3d 612, 618 (7th Cir. 2000) (requiring a showing that
comparison employees possess analogous experience).
Finally, Plaintiff puts forth evidence that Ceridian’s
proffered reason for failing to hire him was merely
pretextual. This inquiry is essentially the same as the
pretext inquiry under the indirect method. Gorence, 242
F.3d at 762. “Circumstantial evidence, however, must point
directly to a discriminatory reason for the employer’s
action.” Koszola v. Bd. of Education of City of Chicago,
385 F.3d 1104, 1109 (7th Cir. 2004). Plaintiff can
demonstrate pretext by creating a genuine issue of material
fact as to whether the proffered reason is: (1) factually
baseless, (2) not the real reason for failing to hire him,
or (3) insufficient to motivate the decision not to hire.
Gusewelle, 374 F.3d at 575. Plaintiff has not introduced
evidence under the third category that would show that the
proffered reason was insufficient to motivate the decision
not to hire. Plaintiff has, however, pointed to
circumstantial evidence under the first and second
categories of proof.
First, Plaintiff argues that Ceridian’s statement that it
required MARs to possess direct sales experience with human
resources or payroll products was factually baseless (that
is, that Page 13 Ceridian did not actually consider such
experience to be a key criterion in its hiring decisions).
Plaintiff contends that Ceridian applied its purported key
criterion — direct sales experience of human
resources and payroll software — unevenly among MAR
candidates. Specifically, Plaintiff contends that the
criterion was applied more leniently to younger candidates
and more stringently to older candidates.
Plaintiff argues that the MARs who Cerdidian hired did not
have direct sales experience. The record does not support
this argument. Brown had experience selling outsourcing
software; Glenn had experience selling time and attendance
software; and Wrobleski had experience selling payroll and
human resources software. Pl. Ex. 2. Further, Winter,
another MAR, was originally hired by Ceridian for a
different position, to which the direct human resources or
payroll software sales experience did not apply. DR
¶ 7.
Plaintiff also contends that the resum?©s of other, younger
MAR candidates who advanced to final interviews or were
hired did not indicate directly-related experience selling
human resources or payroll software. Gleason, an MAR
candidate younger than Plaintiff, lacked experience with
human resources or payroll software. Id. While Gleason,
unlike Plaintiff, advanced to a final interview with
Ceridian, he was not ultimately hired. Wormley stated that
he advanced Gleason to the final interview because of his
strong track record in IT sales, which Wormley considered
an asset because Gleason’s experience “involved computers,
company’s networks, dealing with information technology and
employees of our prospective firms.” Pl. Ex. 8 at 36-37.
Wormley ultimately decided not to hire Gleason. Page 14
Finally, Plaintiff argues that the resum?©s of other, older
MAR candidates (such as Albach and Fenton) did indicate
directly related sales experience, but these candidates did
not advance beyond the first interview. Albach, according
to his declaration, had four years of human resources and
payroll sales experience. Pl. Ex. 12 at ¶ 3. Wormley
felt, however, that Albach’s experience did not have the
“depth” sufficient to qualify him for the job. Wormley Dep.
at 39. Fenton, according to his resum?©, had sixteen years
of consultative/solution based sales of various business
software, including human resources and payroll
applications. Pl. Ex. 14. Wormely felt Fenton’s actual
sales experience was light and that his experience was more
as a consultant. Wormley Dep. at 42.
Based on this evidence, a reasonable jury could not
conclude that Ceridian applied its key criterion
inconsistently. Ceridian did not hire any MARs (for the
position of MAR) who did not possess direct sales
experience. The Seventh Circuit has held that “an
employer’s decision to favor one candidate over another can
be mistaken, ill-considered or foolish, [but] so long as
[the employer] honestly believed those reasons, pretext has
not been shown.” Blise v. Antaramian, 409 F.3d 861, 877
(7th Cir. 2005). Here, Wormley has provided reasons for his
decision to advance Gleason to the final interview and for
failing to offer Fenton and Albach a second interview.
Plaintiff has not introduced evidence to suggest that
Wormley’s beliefs were not honestly held. Thus, a
reasonable jury could not conclude that the purported
inconsistencies in the advancement of candidates through
the interview stages were great enough to prove that
Ceridian’s proffered reason for failing to hire Plaintiff
was Page 15 factually baseless.
Plaintiff has also pointed to evidence that Ceridian’s
proffered reason was not the real reason for failing to hire
him. Plaintiff argues that Ceridian’s proffered reasons for
its decision not to hire him have shifted. Plaintiff
contends that in Ceridian’s statements to the IDHR,
Ceridian indicated that, in addition to lacking direct
payroll or human resources software sales experience,
Plaintiff also lacked experience calling on high-level
executives. Ceridian’s statement read: “[Plaintiff] did not
have previous sales experience selling Human
Resources/Payroll/Benefits or Time and Attendance software
calling on Chief Financial Officers or Vice Presidents of
Human Resources.” Pl. Ex. 2. Plaintiff stresses that
Wormley stated in his deposition that Plaintiff had plenty
of experience calling on high level executives and that
Plaintiff’s lack of directly related sales experience was
the reason for failing he was not hired. Wormley Dep. at
65. Thus, Plaintiff argues that Ceridian has shifted its
reason for failing to hire him from his lack of experience
calling on high level executives to his lack of directly
related sales experience.
The Seventh Circuit has noted that “shifting and
inconsistent explanations can provide a basis for a finding
of pretext.” Schuster v. Lucent Technologies, 327 F.3d 569,
577 (7th Cir. 2003). The explanations, however, “must
actually be shifting and inconsistent to permit an
inference of mendacity.” Id. A shift in word choice, but
not substance, is insufficient. Id. Here, the substance of
Ceridian’s proffered explanations was, at its core, the
same: Plaintiff lacked directly related sales experience.
Page 16
Thus, because Plaintiff has failed to present
circumstantial evidence that would warrant a reasonable
jury conclusion that Ceridian’s proffered explanation was
either factually baseless or not the real reason it did not
hire Plaintiff, his pretext argument under the direct
method fails. Plaintiff cannot survive summary judgment
under the direct method.
B. INDIRECT METHOD
Thus, Plaintiff is limited to the indirect method to
survive summary judgment. The parties agree that Plaintiff
satisfies the first element (he is older than forty so in
the protected class) and the third element (he was not
hired) of his prima facie case. Ceridian claims that
Plaintiff has failed to satisfy the second element (he
applied for and was qualified for the position) and fourth
element (those who were hired were not in the protected
group and had similar or lesser qualifications) of the
prima facie case. Further, Ceridian claims that even if
Plaintiff satisfied the prima facie case, it had
legitimate, non-discriminatory reasons for failing to hire
Plaintiff, which Plaintiff claims are merely pretextual.
1. A Reasonable Jury Could Conclude that Plaintiff
Satisfied the Second Element of the Prima Facie Case.
To establish the second element of the prima facie case
under the indirect method, a plaintiff must prove that he
was qualified for the position. According to the CHRG job
posting, the MAR position required a Bachelor’s Degree in
business, finance or accounting, or equivalent experience;
three to five years of directly related sales experience;
knowledge of human resources or payroll; and familiarity
with PCs and software. Additionally, the job Page 17
posting required effective communications and
problem-solving skills and the ability to work
independently.
Plaintiff had more than twenty years of IT and software
sales experience, including sales experience at Ceridian.
Thus, even though Plaintiff had a Bachelor’s degree in
Religion, a reasonable jury could conclude that he had
experience equivalent to a business degree. A jury could
also conclude that Plaintiff had developed effective
interpersonal skills during his decades of sales
experience. Further, Plaintiff’s brief experience selling
ERP, which included a human resources software module,
provides a basis for a reasonable jury to conclude that
Plaintiff had “knowledge of human resources or payroll
experience.” Finally, much of Plaintiff’s sales experience
dealt with software and IT tools and Plaintiff had previous
experience at Ceridian. Based on these experiences, a
reasonable jury could conclude that Plaintiff satisfied
Ceridian’s requirements for its MAR position.
2. Plaintiff Has Failed to Argue that He Satisfies the
Fourth Element of His Prima Facie Case.
In its summary judgment motion, Ceridian argues that no
genuine issue of material fact exists with regard to the
fourth element of Plaintiff’s prima facie case, which
requires Plaintiff to show that those who were hired were
not in the protected group and had similar or lesser
qualifications for the position. After deciding not to hire
Plaintiff, Ceridian instead hired David Coyner, who was
outside the protected class. In his response to Ceridian’s
summary judgment motion, Plaintiff did not argue that Coyner
was similarly or less qualified Page 18 for the position.
Because Plaintiff would bear the burden of proof on this
issue at trial, he may not rest on the pleadings; rather,
he must designate specific facts showing that a genuine
issue of material fact exists for trial. Celotex, 477 U.S.
at 324.
Instead, Plaintiff admits that Coyner had three years of
direct human resources and payroll sales experience. PR
¶ 20. By contrast, Plaintiff admitted that he only
briefly sold a software package that included a human
resources module years ago. Id. at 13. Plaintiff does not
recall details of that experience and is unsure if any of
his sales included the human resources module. Id. Thus,
Plaintiff has failed to show that a genuine issue of
material fact exists regarding the fourth element of his
prima facie case. Because Plaintiff cannot establish a
prima facie case of discrimination, the Court is not
required to reach the issue of whether Ceridian’s proffered
reason for failing to hire Plaintiff is a pretext for
discrimination.
3. Even if Plaintiff Established a Prima Facie Case, a
Reasonable Jury Could Not Conclude that Defendant’s
Proffered Reason was a Pretext for Discrimination.
Ceridian’s stated reason for not hiring Plaintiff is that
Plaintiff lacked direct experience selling human resources
and payroll software, which shifts the burden back to
Plaintiff to establish that a fact issue remains regarding
whether Ceridian’s proffered reason was pretextual. This
pretext analysis is the same as the analysis under
Plaintiff’s direct method claim of disparate treatment,
supra at Section III(A). Plaintiff’s pretext argument would
fail here as well. Thus, even if Plaintiff had established
his prima facie case of discrimination, he would not have
survived summary judgment under the indirect method. Page
19
C. MIXED MOTIVES ARGUMENT
At oral argument, Plaintiff argued that he need not show
that age discrimination was the sole reason underlying
Ceridian’s decision not to hire. Plaintiff argued that he
would be entitled to limited relief under the 1991
amendments to Title VII (42 U.S.C. § 2000e-2(m)),
which recognized “mixed motives” discrimination claims.
Under Desert Palace, Inc. v. Costa, a Title VII plaintiff
can introduce either direct or circumstantial evidence to
show that a protected characteristic was a motivating
factor in an adverse employment action. 539 U.S. 90, 98-99
(2003).
The Seventh Circuit has not extended Desert Palace, a case
that dealt with a Title VII claim and interpreted a Title
VII provision, to ADEA claims. Many of our sister circuits
similarly have not addressed the issue. The cases that have
addressed the issue have diverged. See Rachid v. Jack In
The Box, Inc., 376 F.3d 305, 311 (5th Cir. 2004) (extending
Desert Palace to ADEA); EEOC v. Warfield-Rohr Casket Co.,
Inc., 364 F.3d 160, 164 (4th Cir. 2004) (Desert Palace does
not apply to the ADEA); Strauch v. American College of
Surgeons, 301 F. Supp. 2d 839, 844 (N.D. Ill. 2004) (“the
similarities in text and purpose between Title VII and ADEA
. . . [make] it likely that whatever doctrinal changes
emerge as a result of Desert Palace in the Title VII context
will be found equally applicable in the ADEA arena”).
Plaintiff raised his mixed motive claim in a cursory
footnote to his response to Ceridian’s summary judgment
motion. Plaintiff’s counsel briefly addressed the issue at
oral Page 20 argument. For the same reasons the Court
concludes that no fact question exists under the direct and
indirect method, the Court also concludes that no fact
question has been raised under the mixed motive argument,
even if it were to apply.
IV. CONCLUSION
Under Plaintiff’s direct disparate treatment theory, a
reasonable jury could not conclude that Ceridian’s decision
not to hire him was based on age. Under Plaintiff’s
indirect disparate treatment theory, Plaintiff has not
created a fact issue for trial as to whether Coyner was
similarly or less qualified for the position. Thus,
Plaintiff cannot satisfy the fourth element of his prima
facie case and his indirect disparate treatment claim
cannot survive summary judgment. For these reasons,
Defendant’s motion for summary judgment is granted.
SO ORDERED.
[fn1] Citations to the record are in the following form:
Defendant’s 56.1(a) Statement of Material Facts is
abbreviated “DS”; Plaintiff’s response to DS is abbreviated
“PR”; Plaintiff’s 56.1(a) Statement of Additional Facts is
abbreviated “PS”; Defendant’s reply to PS is abbreviated
“DR”; Plaintiff’s and Defendant’s Appendix of Exhibits are
abbreviated as Pl./Def. Ex. ___; Depositions are
abbreviated as ______ Dep.