Murphy v. Caterpillar Inc ( 2024 )

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS BRIAN J. MURPHY, ) ) Plaintiff, ) ) v. ) Case No. 21-cv-1282-JES ) CATERPILLAR INC., ) ) Defendant. ) ORDER AND OPINION This matter is now before the Court on Defendant Caterpillar Inc.’s (“CAT”) Motion for Summary Judgment (Doc. 22), supported by a memorandum. Doc 23 (collectively, the “Motion”). Plaintiff Brian J. Murphy responded (Doc. 25, the “Response”), and CAT replied. Doc. 32 (the “Reply”). For the following reasons, the Motion is GRANTED in its entirety.1 Material Facts2 Murphy, born on June 21, 1959, resides in the Village of Morton, Tazewell County, Illinois. Doc. 27-1 at 1.3 CAT, one of “the world’s leading manufacturer of construction and mining equipment, off-highway diesel and natural gas engines, industrial gas turbines and diesel- electric locomotives,” is a corporation organized under the laws of the State of Delaware, with its 1 Throughout the Order and Opinion, the Court cites the electronic pagination. However, the electronic pagination does not always track the page number printed on a particular submission. 2 The Court has reviewed the voluminous record, consisting of approximately 840 pages of exhibits. However, some of the information contained within the record is duplicative, and when referencing a duplicated document, the Court refrains from including all possible citations. 3 Three different exhibits are located in Doc. 27-1: It contains the Answer on pages 1 to 25, Defendant’s Objections and Responses to Plaintiff’s “Second Set of Request[sic] to Admit and Discovery Requests” on pages 26 to 47, and Defendant’s Objections and Supplemental Responses to Plaintiff’s Third Set of Discovery Requests on pages 48 to 53. headquarters and principal operations located in Irving, Texas. Doc. 32-1 (CAT’s FORM 8-K, Dated December 23, 2023). Murphy began his employment with CAT in 1979, at age 19. Murphy obtained an engineering degree over his first fourteen years of employment with CAT, and in the mid-1990s, was promoted to Senior Design Engineer. See Doc. 26 (Murphy Decl.) at 1. On November 20, 2000, Murphy was working for CAT in Fuel Systems at the Pontiac Plant, id. at 2, where a string of events, immaterial to this action, led to his termination. Doc. 27-1 at 3. In late 2001, Murphy filed a lawsuit in federal court, alleging age discrimination and retaliation. See Murphy v. Caterpillar, Inc., JAG-01-1402, Doc. 1 (C.D. Ill. Sept. 28, 2001). That case proceeded to discovery, and the court subsequently granted CAT’s motion for summary judgment as to Murphy’s age discrimination claim, but permitted the retaliation claim to proceed to trial. See id., Doc. 40 (Dated Mar. 26, 2004). At trial, the jury entered a verdict in Murphy’s favor, id., Doc. 46 (Dated Apr. 29, 2004), and the court ordered that he be reinstated. See id., Doc. 71 (Dated Oct. 26, 2004). Then, in January 2005, the Parties entered into a “Release and Settlement Agreement.” See Doc. 23-2 at 4-8 (the “Agreement”). Of relevance to the instant action, the Agreement contained an anti-retaliation provision, which states, Doc. 23-2 at 7: 6. Other Agreements by MURPHY. MURPHY also agrees that: ee ’ his employment with CATERPILLAR will be “at-will” and can be terminated at any time by MURPHY and/or CATERPILLAR for any reason not prohibited by law; provided, however, that Caterpillar will not retaliate against MURPHY, by means of job conditions or locations, salary or other compensation, demotions or non-promations, termination or otherwise, on account of (i) MURPH Y’S commencement and pursuit of the Case, (ii) his statements of conduct during the Case, or (tii) his execution or enforcement of this Agreement, Murphy was reinstated in January 2005, Doc. 27-1 at 5. From the time of his reinstatement in 2005 up until 2013, Murphy worked for several different supervisors, and was promoted to a Sound Program Leadership position in 2008. See Doc. 27-5 at 12-13 (Murphy’s Chronological Job History). Then, in January 2013, Matthew David Rampenthal became Murphy’s new supervisor in the Industrial Power Systems Division. Doc. 23-6 at 2-6 (Rampenthal Decl.). In June 2013, Rampenthal became aware of two inappropriate comments allegedly made by Murphy at around that time. See Doc. 23-7 at 21-24 (Rampenthal’s Desk Notes Dated June 10, 2013). As to the first comment, Murphy questioned a coworker who participated in jury selection for a criminal drug case as to whether the defendant was African American. Id.; Doc. 23-1 at 2-78 (Murphy Depo.), id. at 27; Doc. 23-6 at 12. The second comment involves Murphy’s statement in a meeting as to how women like to ride Harley Davidson motorcycles due to the vibrations. Doc. 23-6 at 8-11 (Rampenthal’s Desk Notes Dated June 27, 2013); Doc. 23-7 at 21-24. Murphy initially denied making any statement concerning Harley Davidson motorcycles and women. Doc. 23-6 at 12. But, at his deposition, Murphy admitted to saying, “maybe we can have our own signature vibration” and “I hear some women like second gear on Harley Davidson.” Doc. 23-1 at 24. Upon investigation of these statements, Rampenthal engaged Murphy’s prior supervisor, Jim Sibley, in a dialogue. Doc. 23-7 at 21-24. Sibley told Rampenthal that Murphy had previously made an offensive comment about “fondling parts” in the presence of a female assistant. Id. At his deposition, Murphy clarified this comment, Doc. 23-1 at 25: “I just said to her as I was leaving because when I tap on a keyboard I kind of pound keys, and she just very lightly touches those. And so I said I’ll let you get back to fondling, meaning touching gently and lightly, your keyboard.” It was around this time that Rampenthal learned from Sibley of Murphy’s 2001 lawsuit and 2005 reinstatement. See Doc. 27-3 (Rampenthal Depo.) at 13-15. Due to Murphy’s alleged comments and employment history and the prior lawsuit, Rampenthal set up a discussion with Human Resources (“HR”) employee, Andrew Konsky, to determine how to proceed. Doc. 23-7 at 21-24. Konsky indicated that he would support a performance improvement plan (otherwise referred to as a “PIP,” “action plan,” “Did not Meet Performance Expectation Plan,” and “plan”) based on Murphy’s confirmed inappropriate remark, and also his performance – noting that even though Murphy may be meeting his goals it is unacceptable to do so in a disruptive fashion. Id.; Doc. 27-3 at 71-73. Ultimately, Rampenthal did not pursue an action plan, and instead, Murphy was required to complete “Prohibited Harassment” training. Doc. 23-6 at 2. After these incidents, Rampenthal appeared satisfied with Murphy’s performance and conduct for quite some time. See, e.g., Doc. 26-1 at 8. Indeed, Murphy’s performance reviews for years 2013 to 2017 indicate that he either met or exceeded Rampenthal’s expectations. See Doc. 27-8 (Murphy’s 2013 Performance Review); Doc. 27-9 (Murphy’s 2014 Performance Review); Doc. 27-10 (Murphy’s 2015 Performance Review); Doc. 27-11 (Murphy’s 2016 Performance Review); Doc. 23-3 at 8-22 (Murphy’s 2017 Performance Review). 4 It was not until late 2017 that Rampenthal began to consider remedial measures in connection with Murphy’s performance. On January 11, 2018, Murphy notified Rampenthal of a tooling access issue with one of his projects. Doc. 23-2 at 9-11. In response, Rampenthal emailed Murphy questioning why the issue was not identified and fixed at an earlier time, and Rampenthal also emphasized that Murphy was ultimately accountable for the project. Id.; see also Doc. 23-6 at 3. Of note, Huber was blind copied on Rampenthal’s email to Murphy (as well as several subsequent emails), as she was already aware of Rampenthal’s concerns with Murphy’s performance, and she recommended that Rampenthal clearly articulate his expectations. Doc. 27-2 at 53-54; Doc. 27-3 at 29-30. 4 Notably, performance reviews are not finalized until March of the following year, so Murphy’s 2017 review was finalized in March 2018, etc. See Doc. 27-2 (Huber Depo.) at 27. Heather Huber served as a Human Resources (“HR”) manager, and she began to work with Rampenthal’s division in October 2017. See id. at 45; Doc. 23-5 at 2-4 (Huber. Decl.). In February 2018, more issues surfaced that caused Rampenthal to question Murphy’s performance. Doc. 23-6 at 3-4. Rampenthal discovered a high-risk fuel line failure, as well as several smaller issues, on one of Murphy’s other projects. Doc. 23-2 at 12-13. Rampenthal also learned of a delay in a new product introduction that was under Murphy’s ambit. When Rampenthal asked about Murphy’s plans to address the issue, Murphy suggested that Rampenthal should hire more people. Id. at 14-15. Rampenthal then reminded Murphy to be aware of project delays and hold appropriate discussions to ensure the issue is properly resolved. Id. Prompted, in part, by Murphy’s suggestion as to the need for additional personnel, Rampenthal directed Huber to curate Murphy’s badge report to the time Murphy spent in any Caterpillar building, from October 2017 to February 2018. See Doc. 23-5 at 37-76. The report showed that Murphy was working less than forty hours every week. Id. at 3. Rampenthal met with Murphy several days later, on March 2, 2018, to discuss his ongoing projects. Doc. 23-6 at 4. At the meeting Murphy was informed that he was accountable for the work of the “job owners” under him, and that it was his responsibility to ensure that his job owners had the necessary support and resources. Doc. 23-6 at 20-21 (Rampenthal’s Desk Notes Dated March 2, 2018); see also Doc. 27-2 at 35 (“Owning at Caterpillar means that you take responsibility and accountability for whatever that may be that you own.”). Additionally, Rampenthal conveyed his concern that Murphy was not working enough hours. Doc. 23-6 at 4. On March 5, 2018, Rampenthal shared the badge reports with Murphy. Doc. 23-2 at 18. Shortly after, on March 8, 2018, Murphy met with Rampenthal to discuss the 2017 Final Performance Review. Doc. 23-6 at 4. In that meeting, Rampenthal praised Murphy’s technical skill, but also highlighted issues around job implementation, leadership style, and attendance. Id. at 22 (Rampenthal’s Desk Notes Dated March 8, 2018); but see Doc. 23-1 at 49 (Murphy denies that Rampenthal commented on his leadership and implementation efforts). Murphy explained his low hours by noting that he was entitled to a 15-minute break every four hours, which meant that he was only required to work 37.5 hours a week. Doc. 23-6 at 22.5 When Murphy was asked whether he worked after hours at home, he responded, Doc. 23-1 at 49: “I typically do not work from home because I’m rest[sic] and recharging to, you know, give it my all the next day.” The following day, March 9, 2018, Rampenthal scheduled a March 12, 2018, meeting with Huber to discuss placing Murphy on an action plan. See Doc. 23-6 at 24 (Rampenthal’s Desk Notes Dated March 9, 2018). During that meeting, Rampenthal decided to put Murphy on an action plan. Doc. 27-2 at 74-75. Two days later, on March 14, 2018, Rampenthal became aware (Doc. 23-6 at 5) of an inappropriate remark made by Murphy to Simon Tseng (i.e., one of the job owners under Murphy). Murphy had commented that of his four job owners, the two of Asians descent were “late on their release.” Doc. 23-1 at 50. Murphy also referred to Tseng as his “little job owner.” Id. Several days later, on March 16, 2018, Rampenthal and Huber met with Murphy and informed him that he would be placed on an action plan. Doc. 27-3 at 11.6 At the meeting, Rampenthal shared a PowerPoint presentation that highlighted a few areas of concern, including 5 Rampenthal, however, confirmed with Huber on March 13, 2018, that no such policy existed. Doc. 23-6 at 22-23. 6 Seemingly due to being placed on a PIP, Murphy began to experience anxiety and depression. See Doc. 27-13. However, it is unclear as to how this is relevant to Murphy’s case, as damages are not an issue given the Court’s disposition of the Motion. Nor is anxiety in and of itself a helpful tool in evaluating Murphy’s claim, as it seems that a reasonable person might well experience anxiety upon learning of his employer’s decision to plan him on a PIP. Furthermore, the medical records contain highly sensitive and confidential medical information. Therefore, although Murphy submitted these records, and neither party petitioned the Court to seal the records, under the circumstances, the Court believes sealing is appropriate. See Chapman v. Raemisch, LA-05-1254, 2009 WL 425813, at *7 (E.D. Wis. Feb. 20, 2009) (sealing medical records that are not “so relevant to plaintiff’s claim…”). And so, the Court, sua sponte, DIRECTS the Clerk to SEAL Murphy’s medical records (Doc. 27-13). Murphy’s job performance, attendance, interpersonal relationships, and leadership style. See Doc. 27-5 at 29-33; Doc. 23-6 at 28-29 (Rampenthal’s Desk Notes Dated March 16, 2018). That day, Murphy requested a copy of the presentation, and Huber delivered it to him on March 21, 2018. Doc. 23-3 at 23-24. Also on March 21, 2018, Murphy met with Jeff Bruce and Rampenthal to discuss the challenges in the cartridge filter assembly project in Seguin, Texas, and Rampenthal expressed concerns as to Murphy’s willingness to take on a leadership role and to drive implementation efforts. Doc. 23-6 at 30 (Rampenthal’s Desk Noted Dated March 21, 2018). On March 26, 2018, Murphy met with Rampenthal and Huber to review the proposed action plan. Doc. 23-1 at 61. The action plan (discussed infra) set several categories for improvement, based on a “noticeable change” in Murphy’s performance over the three months prior, including the areas discussed in the PowerPoint deck. Doc. 23-4 at 5-10.7 Additionally, the plan clearly stated that Murphy’s “failure to successfully complete and sustain Improvement on the action ltem(s) listed above could result in reassignment, demotion, and/or disciplinary action, up to and including separation. Id. The next day, Rampenthal sent Murphy a copy of the plan, requesting that Murphy identify any “concerns” by 3:00 pm on March 28, and Rampenthal stated that they would work to execute a plan “…once all three of us are in alignment…” Doc. 23-4 at 4. On March 28, 2018, at 2:30 pm, Murphy sent Rampenthal and Huber an email with his comments and concerns as to the plan. Doc. 27-2 at 30-31; Doc. 23-4 at 12-13. The next morning, Huber replied to Murphy, copying Rampenthal, indicating that they would “not be changing any part of the action plan.” Doc. 23-4 at 11. Around this time, Murphy raised the possibility of his 7 The action plan contains a fifth category, which indicates that Murphy should take steps to find a position in a different division. See Doc. 27-5 at 40. However, this action item was included based on Murphy’s request, and is not relevant to whether he was meeting Rampenthal’s expectations as to performance at the time the plan was to be executed. Rather, the “performance” aspect of this category creates prospective expectations that were not previously applicable. retirement with Huber. Huber replied that Murphy would be able to retire in lieu of meeting the plan’s requirements. Doc. 23-1 at 322-23; Doc. 27-2 at 65-66.8 On March 29, 2018, Huber delivered a copy of the final action plan to Murphy, which, as noted, was the same as the proposed action plan. Doc. 23-1 at 69. On March 29, 2018, the plan was signed by Huber and Jeffrey Moore (i.e., Rampenthal’s supervisor, see Doc. 27-3 at 19-20). Doc. 27-5 at 42. Rampenthal signed the plan on April 2, 2018, and although Murphy did not sign the signature box of the plan on April 2, 2018, he signed the last page of the document, indicated that it was received, and specifically noted that his signature should not be construed to signal that he agreed with the allegations in the plan or the process in which it was created. Id. Rather than proceeding with the plan, Murphy chose to retire, and he gave his notice on April 2, 2018. Doc. Doc. 23-4 at 14. Murphy utilized his saved vacation days, so that his last day was April 30, 2018, and his retirement was effective as of May 1, 2018. Id. at 15-16. Approximately ten months later, Murphy filed a charge with the EEOC, alleging retaliation and age discrimination. Doc. 27-4 at 2. Murphy asserted he was placed on a performance plan based on “minor, cherry-picked negative comments” in prior reviews, despite positive performance evaluations from previous years; and that this was done as a precursor to terminating him due to his increasing age and in retaliation for his 2001 lawsuit. Id. Murphy indicated that he received his notice of right-to-sue letter from the EEOC on July 13, 2021, and has therefore exhausted his administrative remedies. See Doc. 1 at 10. Murphy filed the suit sub judice on October 6, 2021. See Doc. 1 (the “Complaint”). In it, he alleges that CAT discriminated against him on the basis of his age (Count I) in violation of the 8 Murphy also sent Huber an email asking for written confirmation that he would be eligible to retire if he did not satisfy the action plan. Doc. 26-2 at 4. At her deposition, Huber did not recall such a request. Doc. 27-2 at 67. Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. §§ 621 et seq. He also alleges retaliation in violation of the ADEA (Count II) and the Agreement (Count III). As to relief, Murphy seeks, inter alia, front pay, back pay, and punitive damages. Motion for Summary Judgment9 Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant if entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). When presented with a motion for summary judgment, the Court must construe the record “in the light most favorable to the nonmovant and avoid[] the temptation to decide which party’s version of the facts is more likely true.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. 9 The Court acknowledges CAT’s qualm with Murphy’s alleged failure to strictly adhere to Rule 56 and Local Rule 7.1(D). See Doc. 32 at 4-6. However, Murphy’s Response is not so substantively or formulaically deficient as to require the Court to consider undisputed CAT’s Statement of Undisputed Material Facts. Furthermore, CAT’s statements of disputed and additional facts are not visions of clarity. For example, CAT cites Russell v. Village of Dolton, RWG-21-4908, 2023 WL 5748374, *7 (N.D. Ill. Sep. 6, 2023), on twenty-nine separate occasions, and repeats the same quote, id. at 7, “plaintiff cannot rely on inadmissible hearsay to defeat summary judgment,” twenty-five times. CAT also cites Basta v. American Hotel Register Co., 872 F. Supp. 2d 694, 700 (N.D. Ill. 2012), fifty-eight times, without even utilizing a short form citation. It is especially frustrating to the Court that CAT repeatedly asserts that Murphy’s additional facts contain conclusory statements or impermissible legal or factual arguments, while CAT fails to detail which statements it refers to. The pot should refrain from calling the kettle black. Regardless, “[d]istrict courts have ‘considerable discretion in interpreting and applying their local rules….’” Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 549 (7th Cir. 2017) (quoting Dr. Robert L. Meinders, D.C., Ltd. v. UnitedHealthcare, Inc., 800 F.3d 853, 858 (7th Cir. 2015) in turn quoting Cuevas v. United States, 317 F.3d 751, 752 (7th Cir. 2003)). Additionally, the Court is free to consider the record outside the Parties’ briefings, Latko v. Cox, No. 20-2634, 2021 WL 5234863, at *2 (7th Cir. Nov. 10, 2021), and “is confident in its ability to understand which material facts are actually in dispute, as supported by the record.” White v. Felchner, SEM- 19-3181, 2021 WL 3223067, at *2 (C.D. Ill. July 29, 2021). Thus, the Court need not admonish or sanction Murphy in connection with his briefing. Celotex Corp., 477 U.S. at 323-24. Once a properly supported motion for summary judgment is filed, the burden shifts to the non-moving party to demonstrate with specific evidence that a triable issue of fact remains for trial. Gracia v. Volvo Europa Truck, N.V., 112 F.3d 291, 294 (7th Cir. 1997). The party opposing summary judgment “must present definite, competent evidence in rebuttal.” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). However, the non-movant cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories, or admissions that establish that there is a genuine triable issue; he “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Indeed, though a court must “construe all inferences in [a] non-movant’s favor, [] he is not entitled to the benefit of inferences that are supported only by speculation or conjecture.” Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016) (citing Nichols v. Mich. City Plant Planning Dept., 755 F.3d 594, 599 (7th Cir. 2014)). Finally, a scintilla of evidence in support of the non-movant’s position is not sufficient to oppose successfully a summary judgment motion; “there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Discussion Murphy alleges that CAT is liable under the ADEA for retaliation and age discrimination, and also that CAT is liable for breach of contract in connection with the Agreement. See Doc. 1. As discussed in greater detail below, CAT primarily moves for summary judgment as to all of these claims on the basis that 1) Murphy’s performance was not meeting CAT’s legitimate expectations, 2) Murphy has not pointed to any evidence of age discrimination, and 3) the prolonged time between the execution of the Agreement in 2005 and Murphy’s termination in 2018 undermines any causation between the two events. Discrimination (Count I) “The ADEA protects workers 40 years of age and older from age-based employment discrimination.” Wrolstad v. Cuna Mut. Ins. Soc’y, 911 F.3d 450, 454 (7th Cir. 2018). “However, ‘in the ADEA context, it’s not enough to show that age was a motivating factor. The plaintiff must prove that, but for his age, the adverse action would not have occurred.’” Hoffberg v. Elliot Auto Supply Co., Inc., LCJ-21-5063, 2024 WL 245186, at *6 (N.D. Ill. Jan. 23, 2024) (quoting Martino v. MCI Commc’ns Serv., Inc., 574 F.3d 447, 455 (7th Cir. 2009)). Of relevance here, “negative performance reviews and performance improvement plans” do not “constitute adverse employment actions.” Fields v. Bd. of Ed. Of City of Chi., 928 F.3d 622, 626 (7th Cir. 2019) (citations omitted); see also Swenson v. Bd. of Educ. of City of Chi., MMR-20-6558, 2023 WL 4352104, at *4 (N.D. Ill. July 5, 2023) (“‘[A] negative evaluation or admonishment by an employer does not rise to the level of an adverse employment act.’”) (quoting Lucas v. Chicago Transit Auth., 367 F.3d 714, 731 (7th Cir. 2004)). “Although there are many tests and rubrics for viewing discrimination claims, it is important to recall that, at the end of the day they are all merely convenient ways to organize our thoughts as we answer the only question that matters: when looking at the evidence as a whole, ‘whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.’” Brooks v. Avancez, 39 F.4th 424, 433 (7th Cir. 2022) (quoting Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016)); see also Johnson v. Advocate Health and Hosps. Corp., 892 F.3d 887, 894 (7th Cir. 2018). One method a plaintiff may utilize to present this evidence is the burden-shifting approach first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 367–68 (7th Cir. 2019). Under this approach, “[t]o set forth a prima facie case of age discrimination [], an employee must show that: (1) he was over forty years of age; (2) he was meeting his employer’s legitimate expectations; (3) he suffered an adverse employment action; and (4) similarly situated, substantially younger employees were treated more favorably.” Cabrera v. Advance Pallet, Inc., JCD-20-6750, 2023 WL 6276542, at *3 (N.D. Ill. Sept. 26, 2023) (citing Franzoni v. Hartmarx Corp., 300 F.3d 767, 771–72 (7th Cir. 2002)).10 “The law defines substantially younger as ‘generally ten years younger.’” Torbica v. Horizon Bank, DRL-22-20, 2023 WL 7214939, at *5 (N.D. Ind. Nov. 2, 2023) (quoting Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 322 (7th Cir. 2003)). “If the plaintiff meets each element of h[is] prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action, at which point the burden shifts back to the plaintiff to submit evidence that the employer’s explanation is pretextual.” Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 719-20 (7th Cir. 2018) 10 Seventh Circuit case law on the fourth element of a prima facie case of age discrimination is not entirely clear. A few Seventh Circuit cases recite that element as requiring favorable treatment of employees outside the protected class. See, e.g., Phillipson v. Wolf, 831 F. App’x. 212, 216 (7th Cir. Oct 21, 2020). Others require that the individual be substantially younger than the plaintiff. See, e.g., Fleishman v. Continental Cas. Co., 698 F.3d 598, 609 (7th Cir. 2012). Finally, some cases only note that the comparator must be younger, refusing to apply a bright-line test to the age difference between a plaintiff and comparator. See, e.g., Kralman v. Illinois Dept. of Veterans’ Affairs, 23 F.3d 150, 155 (7th Cir. 1994). Nevertheless, this element is not dispositive of Murphy’s claim, as Ortiz renders any analysis of the prima facie case to be nothing more than a useful exercise for the Court in holistically evaluating the record evidence as it relates to age discrimination. Furthermore, the Parties appear to agree that the two other engineering job team leaders, Chris Swanson (age 43) and Bruce (age 54) are appropriate comparators, so the Court refrains from delving further into the issue. See Doc. 25 at 85; Doc. 32 at 139. (citation omitted). Although “[a] plaintiff may put forth and a court may analyze evidence using the McDonnell Douglas framework, [] neither must do so.” Tyburski v. City of Chi., 964 F.3d 590, 598 (7th Cir. 2020) (citation omitted). Here, the Court utilizes “the McDonnell Douglas framework as a supplemental tool.” Id. at 599. The Parties agree that, at all relevant times, Murphy, at age 58, was a member of the class sought to be protected by the ADEA. The Parties disagree as to whether Murphy 1) suffered an adverse employment action, 2) was meeting legitimate performance expectations, and 3) was treated worse than similarly situated employees. The Court now turns to the dispute concerning Murphy’s adverse employment action, that is, whether he was constructively discharged. A plaintiff can typically show constructive discharge in two ways. See Ziccarelli v. Dart, 35 F.4th 1079, 1091 (7th Cir. 2022) (citation omitted). Under the first, a plaintiff must “demonstrate a discriminatory work environment even more egregious than the high standard for hostile work environment.” Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th Cir. 2008). Under the second, a plaintiff must show that he was forced to resign because his “working conditions [became] so intolerable that a reasonable person would have felt compelled to resign.” Stamey v. Forest River, Inc., 37 F.4th 1220, 1225 (7th Cir. 2022) (citation omitted). Murphy admits to proceeding under the second approach. See Doc. 25 at 70. Thus, the determination of whether Murphy was constructively discharged turns on whether his working conditions were intolerable. “Working conditions become intolerable when an employer acts in a manner so as to have communicated to a reasonable employee that []he will be terminated, and the employee resigns. In other words, constructive discharge occurs where, based on an employer’s actions, the handwriting was on the wall and the axe was about to fall.” Scaife v. U.S. Dep’t of Veterans Affs., 49 F.4th 1109, 1119 (7th Cir. 2022) (citation, quotation, and alteration omitted); see also Hunt v. City of Markham, 219 F.3d 649, 655 (7th Cir. 2000) (“A person who is told repeatedly that he is not wanted, has no future, and can’t count on ever getting another raise would not be acting unreasonably if he decided that to remain with his employer would necessarily be inconsistent with even a minimal sense of self-respect, and therefore intolerable.”). However, a “working condition does not become intolerable or unbearable merely because a prospect of discharge lurks in the background.” Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010) (quotation and citation omitted); see also Wright v. Ill. Dep’t of Child. & Fam. Servs., 798 F.3d 513, 523 (7th Cir. 2015) (“…an employee did not demonstrate that she was discharged constructively when she received notice of her employer’s intent to commence a process that could lead to her discharge and ‘the employer [did] not undermine the employee’s position, perquisites, or dignity in the interim.’”) (quoting Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 333 (7th Cir. 2004)). The Parties’ briefing on this issue is disconnected, with CAT failing to address the important points raised by Murphy. Murphy primarily argues that the circumstances leading up to the implementation of the action plan rendered his termination a foregone conclusion. Doc. 25 at 68-73. He points to, inter alia, CAT’s refusal to incorporate any of his suggested edits into the plan, CAT management signing the action plan as though Murphy was unsuccessful, and the action plan containing deadlines that Murphy would have already failed to meet the moment the plan took effect. CAT does not address these factors, and instead argues in the Motion (and asserted again in the Reply) that Murphy has not cited evidence to support an inevitable termination, and the Court should not speculate as to whether Murphy could have satisfied the plan. Perhaps CAT’s omission is a concession to the weakness of its argument and the strength of Murphy’s position. The record shows that the plan required Murphy to “assemble each of the primary teams/ groups Impacted by the Seguin sourcing plans” by March 28, 2018, see Doc. 27-5 at 38, □□□□□ several days before the action plan was to take effect. Murphy asserts that as of March 29, 2018, when he emailed Huber with his edits, he was already in violation of this requirement. Doc. 25 at 72. A jury could find that Murphy’s unavoidable violation of the plan to be indicative of his inevitable termination. Similarly, a jury could reasonably infer that Murphy’s discharge was inescapable due to Huber and Rampenthal failing to implement any of Murphy’s suggested changes to the plan. See Doc. 27-5 at 34-36.'! In particular, a jury may find significance in Huber’s deposition testimony, where she answered “no” upon being asked whether Murphy’s proposed changes “seemed unprofessional or not designed to in his view improve the action plan.” Doc. 27- 2 at 32-33. Yet, even more potent is the effect of CAT’s management and HR signing the plan. The record shows that Rampenthal signed the plan on April 2, 2018, and Huber and Moore signed the plan on March 29, 2018. Doc. 27-5 at 42. The signatures are displayed on the plan as follows, id.: Signatures for Did Not Meet Action Plan Employes: 4) —\ ra 6 DS Date: of fy I Supervisor: Date: F Manager L4 {L “or Date: 3/ra/i¢ HR Signfture: ——// Date, > oy