Guy Martino v. MCI Communications ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2405
G UY R. M ARTINO,
Plaintiff-Appellant,
v.
MCI C OMMUNICATIONS SERVICES, INC.,
d/b/a V ERIZON B USINESS SERVICES,
a Delaware corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 2627—Amy J. St. Eve, Judge.
A RGUED M AY 28, 2009—D ECIDED JULY 28, 2009
Before C UDAHY, E VANS, and T INDER, Circuit Judges.
E VANS, Circuit Judge. Guy Martino appeals from the
district court’s grant of summary judgment to his former
employer, MCI Communications Services, Inc., and then,
following a merger, Verizon Business Network Services,
Inc. (Unless specificity is needed, we’ll refer to both as
the “company.”) Martino alleges that the company
2 No. 08-2405
selected him for termination during a nationwide reduc-
tion in force (RIF) because he was nearing his 56th birth-
day. The district court decided that no reasonable jury
could reach that conclusion. Martino appeals and we
review the district court’s decision de novo, starting
with the facts viewed in the light most favorable to
Mr. Martino.
Martino wasn’t exactly a spring chicken when he
started working for MCI. He was 54. But apparently that
didn’t trouble MCI or the manager who interviewed
him, Bob Gross. From the time he began his employment
in February 2005 to the day he was released in July 2006,
Martino reported to Gross in his capacity as a “business
solutions consultant,” or BSC. In that position, Martino
assisted “core sales teams,” which in turn had a list of
client accounts. To use the company’s lingo, Martino
was in an “overlay” position—he provided support to
sales teams but never actually spearheaded sales. On
the other hand, Martino had a financial stake in the
process. In addition to a salary, he received commissions
on sales to which he was assigned. That would bring
quite the benefit when Martino had the good fortune
to work on a deal with British Petroleum (BP).
MCI began negotiations with BP over the summer of 2005
and closed the deal in October. Although Martino was
technically part of the team working the deal, his involve-
ment was peripheral. Even at that, some of the more
important people involved—David Schiffman, the core
sales rep who “quarterbacked the deal,” and Steve
Rumstein, the director of IT Hosting Solutions—thought
No. 08-2405 3
Martino came up short. One of the key phases of the
transaction was drafting a response to BP’s “request for
proposal” (RFP). (In plain English, this was MCI’s chance
to make its sales pitch.) Schiffman took the lead on the
project, but he assigned Martino the task of “gathering
and providing technical information regarding data
centers and hosting-related products and services.” From
Schiffman’s perspective, Martino failed in that task. He
“did not do an adequate job in assisting the core sales
team”; he “provided inaccurate and/or incomplete infor-
mation”; he was “frequently inaccessible”; and he was not
a team player. Rumstein’s impression was much the
same. He expected Martino to “take a much stronger
leadership role in driving the sale process.” Naturally,
Martino had a different view of things. He said his col-
leagues relied “very heavily on [him] from a hosting
standpoint,” and he “would like to think” of himself as a
“key person” on the deal.
In any event, Martino got credit for the BP deal after it
closed, boosting his sales figures well over quota and
turning a handsome commission. That was, however, the
sole bright spot in an otherwise unremarkable tenure.
Nearly 85 percent of Martino’s sales during his employ-
ment resulted from the BP deal and, as we noted,
Martino’s credit for those sales was more a consequence
of the nature of MCI’s crediting policy—to acknowledge
everyone involved, no matter how weak their perfor-
mance—than of hard work. When the BP deal wasn’t in
play, Martino’s numbers suffered. In 2005, he failed to
reach quota during March, April, May, June, July,
August, September, November, and December. And in
4 No. 08-2405
the absence of the BP deal, Martino would have hit only
47 percent of his quota for 2006. Martino therefore puts
it rather mildly when he says the BP transaction was just
a “significant contributor to [his] overall performance.”
But apart from the fact that the BP deal was Martino’s
only big success—and he was hardly instrumental to the
deal at that—Martino’s skill set was soon to be obsolete.
Following MCI’s merger with Verizon in January 2006,
sweeping changes took place. Verizon did a “redundancy
analysis” to identify duplicative positions, a common
practice when companies in the same industry merge.
Naturally, redundancies were found, and that led to a
RIF. But in Martino’s department at least, something else
drove the RIF. Verizon wanted to shift the focus of that
department, IT Hosting Solutions, to the provision of
more complex services. (Bear with us now as we march
through the associated jargon.)
During Martino’s employment with the company, the
data services sold were either “colocation” services or
“managed hosting” services. Colocation involved a client
purchasing space, power, and cooling for its servers in
the company’s data centers. The client managed the
servers. In managed services, on the other hand, the client
purchased space, power, and cooling, but the company
managed the servers and applications. So colocation
services were more basic (and thus cheaper), while man-
aged services were more elaborate, involved more work
on the company’s end, and presumably generated more
revenue. When Verizon took over it decided to change
the role of the BSCs in all of this. Going forward, BSCs
No. 08-2405 5
would no longer be responsible for selling basic colocation
services. Instead, they would only receive credit and
commissions for the sale of managed services, and they
would be expected to take a more active role in the
sales process. This was problematic for Martino because
he had limited success selling managed services; the
majority of his qualified sales—including the BP transac-
tion in which he did not meaningfully participate—
consisted of basic colocation services. Martino was thus
a prime candidate for termination.
And terminated he was. Word came down in June 2006
that 35 employees needed to be discharged from IT Ser-
vices (of which Martino’s group, IT Hosting Solutions,
was a subunit). Ed Franklin, the vice-president of IT
Services, in turn asked Rumstein to submit a list of indi-
viduals from IT Hosting Solutions least likely to con-
tribute to the company moving forward. In addition to
Martino, Rumstein identified five others, all of whom
were significantly younger than Martino (ranging in age
from 33 to 45). He considered several factors to come
up with the names, including geographical coverage
(because some areas were staffed more adequately than
others); the employee’s “demonstrated ability” to sell the
complete product line (with a particular emphasis on
managed hosting services); credibility with core sales
teams; and “actual sales performance.” Rumstein placed
limited weight on this last factor, however, since, as we
have explained, the sales numbers could be skewed by
virtue of the crediting system. Considering all the
factors, Rumstein believed Martino looked good on
6 No. 08-2405
paper but brought little to the table beyond that, especially
in light of the shifted focus to managed hosting services.
Franklin then decided to discharge Martino along
similar lines:
After receiving Mr. Rumstein’s list, I selected Mr.
Martino for the RIF based on his performance. Al-
though Mr. Martino’s qualified sales numbers were
very good on their face, a deeper inquiry into his
performance revealed that he was not as strong as
his numbers suggested. First, the overwhelming
majority of his qualified sales were a result of one
sale to BP that occurred in 2005. Based on information
I received from my reports, most notably [from]
Mr. Rumstein, I was aware that Mr. Martino did not
participate in the BP sale in a meaningful way. Second,
Mr. Martino’s track record as a Business Solutions
Consultant demonstrated that he had a limited ability
to sell managed services or application-based services
and, instead, the majority of his qualified sales con-
sisted of basic colocation services. At the time of the
RIF, Verizon . . . was planning to change the BSC
position such that BSCs would be responsible for
selling only managed services, and no longer be
responsible for selling colocation services, in the
second half of 2006 or the beginning of 2007.
In other words, Franklin’s decision was “based entirely
on the needs of Verizon . . . and nothing else.” Indeed, from
the looks of it, Franklin was unaware at the time of
Martino’s age.
No. 08-2405 7
So, where is the evidence of age discrimination? Martino
concedes that there is none when it comes to either the
actual decisionmaker (Franklin) or the manager who
offered him up as a RIF candidate (Rumstein). Invoking
the “cat’s paw” theory, however, he contends that he has
a viable claim for discriminatory discharge through the
alleged animus of a nondecisionmaker—Gross, his imme-
diate supervisor. According to Martino, Gross sometimes
called him an “oldtimer.” That doesn’t strike us as inher-
ently offensive—between friends it’s often a term of
endearment—but Martino sees it as evidence of bias
in favor of the young. Before we test that claim, though,
let’s review the basics of age discrimination in employ-
ment and the more specialized doctrine known as the
cat’s paw.
The Age Discrimination in Employment Act (ADEA)
prohibits employers from firing workers who are 40 or
older on the basis of their age. 29 U.S.C. § 623(a)(1), 631(a);
Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th
Cir. 2007). A plaintiff suing under the ADEA may show
discrimination directly or indirectly, in the latter
instance through the approach established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Because both
methods allow the use of circumstantial evidence, how-
ever, the distinction is often fleeting. See Faas v. Sears,
Roebuck & Co., 532 F.3d 633, 641 (7th Cir. 2008) (“We
have noted that because a plaintiff may utilize circum-
stantial evidence under both methods of proof, the dis-
tinction between the two avenues of proof is vague,
and the terms ‘direct’ and ‘indirect’ themselves are some-
8 No. 08-2405
what misleading in the present context.”) (internal quota-
tion marks and alterations omitted). In either case, the
bottom-line question is whether the plaintiff has proved
intentional discrimination, Olson v. Northern FS, Inc., 387
F.3d 632, 635 (7th Cir. 2004), and therefore much—if not
all—of the same evidence is at play, see, e.g., Venturelli v.
ARC Cmty. Servs., Inc., 350 F.3d 592, 601 (7th Cir. 2003)
(describing one category of overlapping evidence).
Here, Martino attempts to show intentional discrimina-
tion through both methods of proof. We start with the
direct method, which requires Martino to offer direct or
circumstantial evidence that Verizon’s decision to termi-
nate was motivated by age. Tubergen v. St. Vincent Hosp. &
Health Care Ctr., Inc., 517 F.3d 470, 473 (7th Cir. 2008).
Martino focuses on Gross’s “oldtimer” comments, but
because Gross was not a decisionmaker, these comments
are only relevant if Gross had “singular influence” over
the decisionmaker (Franklin and, to a lesser extent,
Rumstein) and “use[d] that influence to cause the ad-
verse employment action.” Staub v. Proctor Hosp., 560
F.3d 647, 651 (7th Cir. 2009); see also Lucas v. Chicago Transit
Auth., 367 F.3d 714, 730 (7th Cir. 2004) (“Generally speak-
ing, comments by a non-decision maker do not suffice
as evidence of discriminatory intent.”). The company can
defeat this tack—what we call the cat’s paw theory—by
showing that, even if Gross was biased and attempted
to get Martino terminated for this reason, the
decisionmaker did an independent analysis and came to
his own conclusion. See Staub, 560 F.3d at 656 (“If the
decisionmaker wasn’t used as a cat’s paw—if she didn’t
No. 08-2405 9
just take the monkey’s word for it, as it were—then of
course the theory is not in play.”). This is where Martino
gets tripped up. This is a particularly weak cat’s paw case
because, even if we assume Gross was prejudiced, there
were not one but two layers of bias-free analysis. Rumstein,
who knew Martino’s work well (having been the director
of IT Hosting Solutions), considered several legitimate
factors in choosing Martino as a RIF candidate. And
Franklin did the same when he made the final decision
to adopt Rumstein’s recommendation. The fact that
Rumstein conferred with Gross about Martino’s perfor-
mance on the BP deal does not mean that Gross’s sup-
posed animus should be imputed to Rumstein (and
ultimately to Franklin). As we noted in Staub, a decision-
maker is not required
to be a paragon of independence. It is enough that the
decisionmaker “is not wholly dependent on a single
source of information” and conducts her “own investi-
gation into the facts relevant to the decision.” To
require much more than that would be to ignore
the realities of the workplace. Decisionmakers usually
have to rely on others’ opinions to some extent
because they are removed from the underlying situa-
tion. But to be a cat’s paw requires more; true to
the fable, it requires a blind reliance, the stuff of
“singular influence.”
Staub, 560 F.3d at 659 (quoting Brewer v. Bd. of Trs. of Univ.
of Ill., 479 F.3d 908, 918 (7th Cir. 2007)) (citations omitted).
We don’t have anything close to “singular influence” in
this case (to say nothing of the fact that the “oldtimer”
10 No. 08-2405
remark just isn’t that egregious). A reasonable jury could
not have found in favor of Martino under the direct
method of proof.1
The same is true for the indirect method. To establish
a prima facie case of age discrimination under the
indirect method, Martino must prove that (1) he is a
member of a protected class (which he is, being 40 or
older); (2) his performance met the company’s legitimate
expectations; (3) despite his performance he was subject
to an adverse employment action (again, not at issue); and
(4) the company treated similarly situated employees
under 40 more favorably. Faas, 532 F.3d at 641. If Martino
1
We also reject Martino’s arguments of suspicious timing and
behavior. While those can be powerful categories of circumstan-
tial evidence, Venturelli, 350 F.3d at 601, Martino’s offerings
are not up to snuff. Any evidence of suspicious timing is
rebutted by the company’s evidence of logical timing—getting
rid of BSCs who lacked managed hosting skills before shifting
to a focus on that line of services. As for suspicious behavior,
we will address that argument—relating as it does to preferen-
tial treatment for younger workers—when we discuss the
indirect method of proof. Finally, we agree with the district
court’s disposition of the ageist comments supposedly made
by Brian Higley when Martino tried to get a different job with
the company after he was terminated. Martino did not bring a
failure-to-rehire claim, so the comments are out of the picture
on that score. And since Higley was not involved in the RIF
decisionmaking process in any way, his comments don’t
qualify as evidence of discriminatory intent in the wrongful
termination context.
No. 08-2405 11
satisfies these criteria, the company may provide a legiti-
mate, nondiscriminatory reason for the termination. Id. at
641-42. Assuming the company offers as much, Martino
may challenge the stated reason as a pretext for discrim-
ination. Id. at 42. Again, however, the ultimate burden to
prove intentional discrimination always remains with
Martino. Greene v. Potter, 557 F.3d 765, 769 (7th Cir. 2009).
Martino cannot make out the second and fourth prongs
of a prima facie case. Quite simply, a reasonable jury could
find neither that he met the company’s expectations nor
that the company treated younger workers any better.
As to business expectations, the evidence shows that
Martino only excelled in one instance—the BP deal—and
even then that success was limited to paper. He had the
good fortune of being staffed on an historic deal—which
earned him sales credit and commissions in abun-
dance—but it was more of a windfall than anything else.
In his supervisors’ eyes, he was not a team player, he
was not available, and he didn’t take a very active role
in the process. Perhaps he helped out, but making some
contribution isn’t the same as making the expected con-
tribution. And, as we have emphasized, Martino’s im-
portance to the company was waning. After the merger,
the company strived to focus on managed hosting
services rather than colocation services. But Martino
showed little promise in that arena. Choosing to termi-
nate someone on the basis of old age is impermissible;
choosing to let someone go because they have an
obsolete skill set, on the other hand, is completely kosher.
Martino doesn’t fare any better when it comes to show-
ing preferential treatment for similarly situated younger
12 No. 08-2405
employees. First off, a number of younger BSCs were let
go right along with Martino. Though that’s not the
dispositive issue here—the issue is whether younger
workers were favored, i.e., kept on the payroll, because
of their age—it’s still relevant. It’s hard to make out a case
for age discrimination when younger workers are also
being shown the door. Nevertheless, it is true that the
company retained six BSCs who reported to Gross and
were younger than Martino at the time of his discharge.
See Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 860
(7th Cir. 2008) (explaining that “similarly situated” em-
ployees are those with the same manager and same
responsibilities). We agree with the district court that two
of the six BSCs—Greg Smidt and Ray Yaeger—provide
little aid to Martino because they were 47 and 49, respec-
tively. See Tubergen, 517 F.3d at 475 n.4 (“Under the ADEA,
in the case of younger employees that fall above the age
of forty, the age difference must be ten years or greater
in order to be presumptively substantial.”). Yet we admit
that the other four BSCs, those under 40, are more
difficult cases. They were far from stellar performers; it
would not be surprising if the company had discharged
them as well. But on the other hand, it was Martino
uniquely who had lost the confidence of the core sales
teams, and he apparently stood out as poorly equipped to
assist in the sale of managed hosting services. RIF decisions
often involve splitting hairs, and sometimes employers
make mistakes, retaining an inferior worker for lack of
omniscience. See Testerman v. EDS Technical Prods. Corp.,
98 F.3d 297, 304 (7th Cir. 1996) (in RIF cases, “we deal
with small gradations, with an employer’s subjective
No. 08-2405 13
comparison of one employee to another, and it is incum-
bent upon us to remember that what is at issue is not the
wisdom of an employer’s decision, but the genuineness
of the employer’s motives.”). Maybe that happened here.
Maybe not. What is clear is that the company didn’t RIF
Martino because he was “over the hill.” Because we
concur with the district court that Martino failed to make
out a prima facie case of age discrimination, we need
not address the other parts of the indirect framework.
A pair of parting remarks. We mentioned at the outset
that Martino was interviewed and hired by the same man,
Bob Gross, who supposedly sought to see him fired
because of his age less than two years later. Common
sense tells us that it’s unlikely for a person to suddenly
develop a strong bias against older folks. That’s not to
say it’s impossible, just that the much more likely
scenario involves a person harboring prejudice from
the beginning, particularly when we’re talking about a
relatively short time frame. Nevertheless, a pair of our
recent decisions suggests that this logic—called the “same-
actor” inference—may be flawed in some cases. Petts v.
Rockledge Furniture, LLC, 534 F.3d 715, 724-25 (7th Cir.
2008); Filar v. Bd. of Educ. of City of Chicago, 526 F.3d
1054, 1065 n.4 (7th Cir. 2008). We do not, however,
believe these decisions make the same-actor inference
completely off-limits. Instead, we simply cautioned courts
not to place “too strong a reliance” on the inference of
nondiscrimination. Filar, 526 F.3d at 1065 n.4. We can
heed that advice in this case—and still adhere to
common sense—by concluding that while the same-
actor inference doesn’t defeat Martino’s claim, it’s one
more thing stacked against him.
14 No. 08-2405
And if there were any doubt that Martino cannot
survive summary judgment, it evaporates completely in
the wake of the Supreme Court’s decision in Gross v. FBL
Financial Services, Inc., ___ S. Ct. ___, 2009 WL 1685684(June 18, 2009). The Court held that in the ADEA context,
it’s not enough to show that age was a motivating fac-
tor. The plaintiff must prove that, but for his age, the
adverse action would not have occurred. Martino cannot
handle that. At best, he has done no more than show
that his age possibly solidified the decision to include
him in the RIF. But a reasonable jury could only conclude
that he would have been fired anyway; age was not a but-
for cause.
The judgment of the district court is A FFIRMED.
7-28-09