In Their Opinion : Seventh Circuit Court of Appeals Commentary : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

MARTINO v. MCI COMMUNICATIONS SERVICES, INC. (July 28, 2009)

MCI hired Guy Martino in 2005 at the age of 54. He was hired as a business solutions consultant and provided support to the company's sales force. Although he was not directly responsible for sales, he did receive commissions on the sales to which he was assigned. Martino was assigned to and received commissions for one blockbuster deal in mid-2005. Other than that one deal, however, Martino's performance was generally lacking. In fact, even the lead salesman on the large deal was quite critical of his individual contribution. MCI merged with Verizon in early 2006. As a result, Steve Rumstein, his group head, was asked to come up with a list of individuals least likely to be strong contributors in the future. Rumstein identified six employees, including Martino. He based his selection on geography, ability, credibility with sales staff and sales performance. With respect to ability, Rumstein focused on a new service being offered by Verizon with which Martino was not well-versed. The five employees on the list other than Martino ranged in age from 33 to 45. Rumstein submitted the list to Ed Franklin, his superior. Franklin decided to fire Martino for all the same reasons that led to his inclusion on the list. Martino brought an action under the Age Discrimination in Employment Act (ADEA). The district court granted summary judgment to MCI. Martino appeals.

In their opinion, Judges Cudahy, Evans and Tinder affirmed. The Court noted that the sole evidence of age discrimination was Martino's allegations that his direct supervisor, Bob Gross, sometimes use "old-timer" to describe him. Under the direct method of proof, Martino relied on the cat's paw theory since Gross was not the decision maker. The Court rejected the theory: there was weak evidence of discriminatory intent to begin with, there were two layers of bias-free decisions, and Rumstein and Franklin both considered a host of legitimate factors. The Court concluded that Martino did not come close to the "singular influence" standard necessary to establish a cat's-paw case. With respect to the indirect method, the Court concluded that Martino failed with respect to two of the elements: that he met the company's performance expectations and that the company treated similarly situated employees under 40 more favorably. First, the record was replete with evidence of Martino's performance limitations. Second, a number of younger employees were let go along with Martino. Although the company did keep several employees under 40, the Court had no trouble concluding that they were not similarly situated.

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STAUB v. PROCTOR HOSPITAL (March 25, 2009)

Vincent Staub was a technologist at Proctor Hospital - and also a member of the Army reserves. Although he managed to balance the two obligations for years, things began to deteriorate in 2000. One of his supervisors was clearly irritated with him because of his reserve obligations. She was very vocal about her dislike of the reserve and her desire to “ get rid of him." Staub, unfortunately, already had a checkered employment history at the hospital. In January 2004, she gave Staub a written warning. She accused him of failing to assist other members of the hospital staff and of leaving his work area. As a result, Staub was instructed to keep his supervisors advised of his whereabouts and schedule at all times. A few months later, a similar incident occurred. Staub was fired immediately by the Vice President of Human Resources. She fired Staub for not only failing to follow the earlier warning, but also for his past issues. Although Staub filed a grievance insisting that the original incident was fabricated by his colleague who did not like him, the HR VP did not investigate. Staub filed an action against the hospital under the Uniformed Services Employment and the Reemployment Rights Act (USERRA). The jury found for Staub and awarded damages. The district court denied Proctor’s motion for judgment as a matter of law or for a new trial. Proctor appeals.

In their opinion, Judges Manion, Evans and Tinder reversed and remanded. The Court stated that USERRA prohibits adverse action based on military status. In order to recover, however, a plaintiff must show that the decision-maker, and not just any coworker, harbored the animus. Here, the HR VP was the decision-maker. There is no evidence in the record that she harbored any animosity against Staub or his military responsibilities. Realizing this, Staub relies on the “cat's paw” theory. Under this approach, the discriminatory animus of a non-decisionmaker is imputed to a decisionmaker when the non-decisionmaker exerts singular influence over the decisionmaker to cause the adverse employment action. The Court emphasized that the employer is not liable unless the decisionmaker relies exclusively on the information provided and fails to conduct any investigation. Here, the Court found that the evidence did not support that conclusion. The evidence was clear that the decisionmaker did not rely exclusively on any information provided by other employees. In fact, the Court criticized the district court for even sending the issue to the jury. Instead, the Court suggested an approach whereby the trial judge makes a threshold determination on whether a reasonable jury could find this exclusive influence before even admitting into evidence the animus of a non-decisionmaker.

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