Leibforth, Margaret v. Belvidere Nat'l Bank ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3190
MARGARET M. LEIBFORTH,
Plaintiff-Appellant,
v.
BELVIDERE NATIONAL BANK and JAMES METZ,
Defendants-Appellees.
__________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 99 C 50381—Philip G. Reinhard, Judge.
__________
ARGUED JUNE 3, 2003—DECIDED JULY 25, 2003
__________
Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
FLAUM, Chief Judge. Plaintiff Margaret Leibforth appeals
the district court’s grant of summary judgment for the
Belvidere National Bank (“Bank”) and its Chief Executive
Officer, James Metz, in this suit under Title VII and the
Age Discrimination Employment Act. We affirm.
I. BACKGROUND
Leibforth began working for the Bank in 1980 as a
teller/secretary and in December 1997 was promoted to the
position of Branch Manager/Assistant Vice President. She
2 No. 02-3190
was terminated a year later, when she was 55-years old.
The parties agree that Leibforth was performing her job in
a satisfactory manner, but the Bank says that it decided to
discharge her when it learned that she had imminent plans
to retire. More specifically, the Bank claims that on May 28,
1998, Leibforth met with Metz and Senior Vice President
Kim Larson to inform them that she was selling her house.
Metz and Larson understood Leibforth to be saying that, as
soon as her house was sold, she was going to retire and
move to Tucson, Arizona. Leibforth, however, denies ever
stating that she had any immediate plans to retire. Instead,
according to her witness John Murphy, who claims to have
been present at the May 28 meeting, Leibforth told Metz
and Larson that her husband “was thinking of retiring,”
that they had put their home up for sale, and that she
“would not be retiring until her house sold.”
Metz announced Leibforth’s planned retirement to Tucson
during a June 1998 officers’ meeting. Leibforth did not
attend the meeting, but Metz’s announcement was reflected
in the minutes, which were sent to Leibforth among others.
The following month, the Bank distributed a memorandum
announcing its hiring of Scott Drexler, a 33-year-old male,
as Leibforth’s replacement. At the same time, Leibforth’s
title was changed from Branch Manager/Assistant Vice
President to Assistant Branch Manager/Assistant Vice
President. Leibforth claims that it was not until she read
this memorandum that she became aware of the Bank’s
belief that she was planning to retire.
On August 25, 1998, Metz and Larson asked Leibforth to
specify a date for her anticipated retirement. Metz told
Leibforth that she would otherwise be terminated on
December 31, 1998, because the Bank did not want to
continue paying two Branch Manager salaries for an
indefinite period of time. In response Leibforth sent Metz a
letter stating, “[a]t this time . . . I will not be setting a
retirement date but will give you one month’s notice when
No. 02-3190 3
my home is sold of my last day of work.” The Bank, how-
ever, true to its word, terminated Leibforth’s employment
on December 31, and two months later hired Rose Sollinger,
a 40-year-old female, to serve as its new Assistant Branch
Manager. Leibforth, meanwhile, ended up selling her house
in May 1999, and the next month she and her husband
moved to Tucson.
Leibforth then filed this suit under Title VII and the
ADEA, alleging that the Bank “terminated Plaintiff’s
employment, and demoted and/or failed to promote the
Plaintiff and/or forced the Plaintiff to retire” because of her
age and sex, and engaged in a pattern and practice of age
and sex discrimination by forcing females “nearing retire-
ment age” to retire. Later in the proceedings, Leibforth
raised two additional claims—that the Bank retaliated
against her and that it discriminated against her by giving
her less pay than her replacement, Drexler. The district
court granted summary judgment for the Bank on all these
claims. It found that Leibforth (1) failed to present direct
evidence of discrimination; (2) failed to establish a prima
facie case of discriminatory demotion; (3) established a
prima facie case of discriminatory discharge but failed to
show that the Bank’s proffered nondiscriminatory reason
was pretextual; (4) presented no admissible evidence
showing a pattern or practice of discrimination; (5) failed
to rebut the Bank’s nondiscriminatory reason regarding
unequal pay; and (6) failed to present any evidence that the
Bank’s actions were retaliatory. Leibforth filed a timely
notice of appeal.
II. DISCUSSION
Though Leibforth raised numerous claims below, we
conclude that she has waived all but two of them—those
regarding discriminatory demotion and discriminatory dis-
charge—for lack of development in her appeal brief. United
4 No. 02-3190
States v. Hook, 195 F.3d 299, 310 (7th Cir. 1999). As for
the two remaining claims, the Bank maintains that we
can affirm the district court’s grant of summary judgment
on any number of grounds. For instance it argues that
Leibforth’s claim of discriminatory termination is barred
because she failed to raise it in her administrative charge
before the Equal Employment Opportunity Commission, see
Noreuil v. Peabody Coal Co., 96 F.3d 254, 258 (7th Cir.
1996), and that Leibforth failed to establish a prima facie
case of discriminatory demotion because her alleged “demo-
tion” was not a materially adverse employment action, see
generally Williams v. Bristol-Myers Squibb Co., 85 F.3d 270,
274 (7th Cir. 1996). We need not address these issues since
we can dispose of both claims with dispatch on the ground
that Leibforth failed to establish pretext. The Bank alleged
that it hired Drexler (and at the same time “demoted”
Leibforth) because it thought that Leibforth’s retirement
was imminent. Though Leibforth now asserts that she
never had any intention of retiring, the relevant question
for purposes of our pretext analysis is whether the Bank
honestly believed that she did, and Leibforth presented no
evidence showing that that was not the case. In fact it is
undisputed that Metz told Leibforth during the May 28
meeting that he intended to hire a replacement for her
position due to her plan to leave the Bank once her house
sold.1 The Bank may have been wrong in its belief that
1
Though Leibforth now contests this factual point, she did not
dispute it in response to the Bank’s Statement of Material Facts
under Local Rule 56.1(a). Nonetheless, at oral argument Leibforth
maintained that the fact should not be deemed admitted because
she made some sort of “general” denial of the allegations con-
tained in the Bank’s 56.1(a) Statement. We disagree with her
position. The Local Rules require that a party opposing summary
judgment file “a concise response to the movant’s statement that
shall contain . . . a response to each numbered paragraph in the
(continued...)
No. 02-3190 5
Leibforth was going to retire (though the evidence over-
whelmingly shows that it was not),2 but to establish pretext
Leibforth had to prove that the Bank’s proffered reason was
a lie, Peters v. Renaissance Hotel Operating Co., 307 F.3d
535, 545 (7th Cir. 2002), which she failed to do.
Leibforth’s claim of discriminatory discharge fails for
similar reasons. The Bank alleged that it terminated
Leibforth’s employment because it did not want to continue
paying her indefinitely while she tried to sell her home.
Leibforth counters that the Bank’s hiring of Rose Sollinger
proved this proffered reason to be pretextual, but we
disagree. First of all, Leibforth’s only evidence fails to
establish whether Sollinger was hired into the exact same
position that Leibforth had held, nor does it give any
indication whether Sollinger was receiving the same pay.
Further, Leibforth’s argument fails to address the real
point—that the Bank did not want to keep her on for an
indefinite period of time, knowing that she would immedi-
ately leave upon the sale of her house.
Finally, Leibforth’s claim that she has direct evidence of
discrimination is frivolous. She points to a statement by the
Bank that the position eventually filled by Drexler was not
offered to any female applicants and to a statement from
1
(...continued)
moving party’s statement, including, in the case of any disagree-
ment, specific references to the affidavits, parts of the record, and
other supporting materials relied upon.” Northern District of
Illinois, Local Rule 56.1(b). Generalized denials do not suffice
under this Rule.
2
Leibforth in fact stated in her administrative charge that “[o]n
May 28th, 1998, I met with James Metz . . . who informed me of
his plans to hire someone for my position of Assistant Vice
President, Branch Manager, due to my plan to leave Respondent
when my house sold.”
6 No. 02-3190
Larson that “it was in the Bank’s best interest to set
Leibforth’s retirement date because she refused to do so.”
These statements do not approach being admissions that
the Bank’s actions were based on a prohibited animus,
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir.
2000), and so cannot be characterized as direct evidence of
discrimination.
III. CONCLUSION
The district court’s grant of summary judgment for the
Bank is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-25-03