Peele, Patricia v. Country Mutual

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-3222
Patricia Peele,
Plaintiff-Appellant,
v.
Country Mutual Insurance Co.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 638--James B. Zagel, Judge.
Argued January 18, 2002--Decided April 30, 2002
Before Manion, Rovner, and Evans, Circuit
Judges.
Manion, Circuit Judge. Patricia Peele
sued her former employer, Country Mutual
Insurance Company, alleging that the
company violated Title VII and the ADEA
by discriminating against her on the
basis of sex and age. Country Mutual
moved for summary judgment, and the
district court granted the company’s
motion. In doing so, the district court
assumed Peele established prima facie
cases of sex and age discrimination, but
concluded she had not demonstrated that
the company’s proffered reason for her
termination, i.e., poor job performance,
was pretextual. Peele appeals the
decision, and we affirm.
I.
On March 20, 1989, Patricia Peele (then
age 48) was hired by Country Mutual
Insurance Company as a claims support
representative ("CSR") for the company’s
Grayslake, Illinois office. As a CSR,
Peele was responsible for processing,
assigning, tracking, and maintaining
claims files. She was also occasionally
assigned single vehicle accident files to
resolve. In April 1990, she received her
first annual performance review. Peele’s
supervisor, Dennis Bates, rated her
performance as "competent."/1 In his
written evaluation, Bates noted that
Peele "handles all processing + a large
amount of claims + answers the phone. She
gets along well with others and is
dependable." She also received favorable
annual reviews (i.e., "competent"
ratings) in 1991 and 1992.
In 1993, Country Mutual changed the
format of its annual review process.
Under the new system, the rankings on the
evaluation form were (in descending
order): "Exceeds Requirements 2,"
"Exceeds Requirements 1," "Meets Require
ments 3," "Meets Requirements 2," "Meets
Requirements 1," "Needs Improvement 2,"
and "Needs Improvement 1." Peele received
a "Meets Requirements 3" rating for her
annual review in 1993./2 In his written
evaluation, Bates noted that "Pat is
always very pleasant with everyone. She
stays in the office and does her work.
Seldom wastes time. She has gotten better
at using audits but still has a ways to
go. Her files are always well documented
and easy to follow . . . ." After
receiving another "Meets Requirements 3"
rating in 1994, Country Mutual promoted
Peele (then age 54) to a class one claims
representative ("CR1"). As a CR1, Peele
was charged with handling single vehicle
claims. In 1995, at her new position, she
received the same "Meets Requirements 3"
rating.
In 1996, Peele’s rating dropped to
"Meets Requirements 2." In his written
evaluation, Bates noted that "Pat is very
dependable and always willing to help
when asked. She handles all single
vehicle accidents and deer losses for the
most part. She gets along well with her
co-workers and has no problems with the
insureds." He did, however, criticize
Peele’s lack of aggressiveness and her
slowness in working through claims, and
indicated that she needed to work on her
"bring-ups." A modernized bring-up system
was instituted by Country Mutual in 1994
as one component of a "Model Office"
system. The Model Office system included
"Best Practices," a set of guidelines for
contacting insureds, obtaining
appraisals, collecting statements, and
bringing claims files to a
conclusion./3 The bring-up system is a
computerized tickler system that tracks
the timely handling of claims according
to the Best Practices guidelines. Country
Mutual required each of its claims
representatives to be current in their
bring-ups for the claims files they
handled. The company’s claims supervisors
are authorized to, and regularly access,
each claims representative’s bring-ups to
monitor their compliance with Best
Practices.
In January 1997, in spite of the recent
drop in her performance rating, Peele
(then age 56) was promoted to claims
representative II-Field ("CR2")./4 As a
CR2, she was assigned more complex
casualty claims involving comparative
negligence, multi-vehicle claims and/or
property claims, along with field work
for accident site investigations and
witness interviews. On March 18, 1997,
after only a few months on the job, Peele
received an "annual" review of her
performance as a CR2. Bates gave her a
"Meets Requirements 1" rating, the
company’s lowest level of satisfactory
job performance. In his written
evaluation, Bates noted that while Peele
was "dependable and always willing to
help when asked," she still needed to be
more "aggressive" and make sure that her
files were properly documented./5 Bates
also indicated that he had discussed with
Peele "her shortcomings since her move to
the field [the CR2 position]," advised
her that "[h]er complaints on the Claims
surveys is one of the highest in the
office," and informed her that she needed
"to work on getting this turned around."
In September 1997, Gary Hanenberger
(then age 40) replaced Bates as the
claims supervisor for the Grayslake,
Illinois office. Prior to his arrival at
the Grayslake office, Hanenberger had
been the claims supervisor at the
company’s office in Rolling Meadows,
Illinois. Both before and after his
transfer, Hanenberger actively reviewed
his claims representatives’ on-line
activities logs (i.e., computerized
calenders and to-do lists used to chart
the progress of pending claims) to
monitor their compliance with Best
Practices. He generally conducted these
reviews on-line through each claims
representative’s activity log.
Hanenberger also maintained a practice of
conducting quarterly performance reviews
of the claims representatives under his
supervision, in addition to their annual
performance reviews. On December 5, 1997,
Hanenberger conducted his first quarterly
review of Peele. In his written
evaluation, he noted "[i]n reviewing
Pat’s files the last three months, I
still feel that she needs to work on
keeping the insured informed so there
[are] no questions [left unanswered]." He
also informed Peele that she needed "to
work on customer service results,"
"complete file investigation in a timely
manner," and "meet all Best Practices."
On February 18, 1998, Country Mutual
performed a "supervisor audit" of all the
claims files in the Grayslake office./6
Michael Kearns, one of the company’s
district managers, oversaw the audit. As
a follow-up to the audit, Donald Weber, a
district training coordinator, reviewed
several of the files at the Grayslake
office (including some of Peele’s), and
prepared an evaluation for each claims
representative. In his evaluation of
Peele, Weber made the following
observations about her files: "[lacked]
conclusion letters to the insured,"
"[lacked] proper investigation," "[m]ost
all need more in terms of statements and
follow-up investigation," "[c]omparative
seems to be a big problem," "[m]any files
did not have OALs [i.e., on-line activity
logs] in file after closing, and those
that did often lacked proper
documentation," and "use of a dedicated
bring-up system is mandatory in all
files." He also advised Peele that her
"[o]verall investigations need[ed] to be
more timely, thorough and meaningful,"
that the "[d]ocumentation in [her]
file[s] must back up and justify the
decisions made based on that
investigation," and that she needed to be
"more aggressive [in] follow-up and MUST
use [the] active bring-up system."
On March 10, 1998, Hanenberger conducted
his first annual review of Peele. He
assigned her a "Needs Improvement 2"
rating, indicating that she was no longer
meeting the expectations of her position.
In his written evaluation, Hanenberger
noted "Pat needs to improve in several
area’s [sic] to meet the requirements of
her position." He also informed Peele
that she was required to meet the Best
Practices guidelines, conduct proper and
timely investigations, apply comparative
negligence, keep the customer informed,
and keep her files on the bring-up system
updated. Hanenberger concluded the
evaluation by advising that he would
conduct a "follow-up file review" at the
end of the month, and noting "I’m
confident that Pat will work hard to
improve on these area’s [sic] and meet
her objectives for the coming year."
On March 25, 1998, Hanenberger conducted
the follow-up evaluation of Peele’s
files, and once again documented numerous
performance deficiencies, noting "[w]e
have discussed your performance several
times in the past 7 months and I still do
not see a marked improvement in your job
performance. Although, after we talk it
seems to improve for awhile, then your
performance tends to drop back below an
acceptable level." He then outlined five
specific problem areas: (1)
investigation; (2) keeping the customer
informed; (3) use of the bring-up system;
(4) application of comparative
negligence; and (5) customer survey
results. Hanenberger informed Peele that
he would "review her files for the next
30 days," and advised that her "failure
to comply with correcting [these]
performance problems . . . could result
in termination of employment."
On May 5, 1998, Hanenberger issued yet
another memorandum documenting Peele’s
job performance deficiencies. While
acknowledging some improvement, he found
that she was still having problems with
customer service and the bring-up system.
Hanenberger decided, however, to give
Peele another 30 days to correct these
deficiencies because there had been a
week during the review period where she
had been dealing with personal issues.
On June 2, 1998, Hanenberger conducted
Peele’s quarterly review. In his written
evaluation, he noted "there are still
files that lack the proper investigation
time and contact times to meet best
practices . . . . It appears to me that
you work hard on the area’s [sic] that we
have outlined in the previous meeting[s]
until I indicate that you have improved
and then the performance in that given
area slips again." Hanenberger concluded
the evaluation by advising Peele that he
would review her files again in 30 days,
and informing her that at the end of this
time period, "I should not have any OAL’s
printed that [have] any of these
[performance deficiencies]."
In May and June of 1998, Kearns and
Hanenberger discussed Peele’s
deteriorating job performance. On June
18, 1998, Kearns reviewed Peele’s files
and noted the following deficiencies:
"bring-up card was left in the file and
never used"; "this file is a disgrace . .
. file has not been touched since 4/29/98
. . . bring up record in file shows last
date as of 12/18/97"; "another poor file-
-reported 5/19/98 and the only
investigation in file is a police report
. . . file has not been touched since
5/27/98"; and "Pat took 6 days to reach
insured for statement . . . absolute
clear liability . . . but it still took
Pat 3 weeks to CW/P call receive."
Shortly after Kearns’s review of Peele’s
files, he and Hanenberger decided to give
her a "provisional rating." The
provisional rating form defines the
rating as reflecting "an unacceptable
level of employee performance," and
includes a "final warning that
performance or behavior must
change."Pursuant to company policy,
Kearns sought approval from Country
Mutual’s human resources department
before issuing this rating to Peele.
On June 23, 1998, Kearns received
approval from Judy Garee, the company’s
manager of compensation, to place Peele
on a provisional rating. Peele was
notified of the rating that same day. The
provisional rating required Peele, at a
minimum, to conduct "timely, thorough and
meaningful" investigations, comply with
Best Practices, actively use the bring-up
system, and properly apply the
comparative negligence standard to her
claims. Peele signed the provisional
rating form, acknowledging that she
understood "that this is her final
warning . . . and [that] at anytime she
fail[ed] to comply with what has been
outlined, her employment with Country
Companies [would] be terminated."
On August 7, 1998, Hanenberger reviewed
63 of Peele’s files from the previous
month. He noted that ten of the files did
not meet the provisional rating’s
requirements. Hanenberger summarized his
findings in a memorandum to Kearns.
Shortly thereafter, Kearns and
Hanenberger decided to recommend that
Peele be terminated. Kearns consulted
with Garee and Joe Painter, the company’s
director of claims, and they approved the
termination. On August 14, 1998, Kearns
and Hanenberger informed Peele of the
company’s decision. A few weeks later,
Country Mutual hired Christopher Mason
(then age 24) to fill her former
position./7
On February 2, 1999, Peele filed suit
against Country Mutual alleging that she
had been terminated in violation of Title
VII, 42 U.S.C. sec. 2000e-2, and the Age
Discrimination in Employment Act
("ADEA"), 29 U.S.C. sec. 623. Peele
alleged that she worked for the company’s
claims department from 1989 until 1998,
at which time she was terminated and
replaced by a man in his late twenties.
Country Mutual moved for summary
judgment, and the district court granted
the company’s motion. Peele appeals this
decision.
II.
We review de novo the district court’s
decision to grant summary judgment,
construing all facts, and drawing all
reasonable inferences from those facts,
in favor of Peele, the non-moving party.
See, e.g., Hall v. Bodine Elec. Co., 276
F.3d 345, 352 (7th Cir. 2002). Summary
judgment is proper 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 a
judgment as a matter of law." Fed. R.
Civ. P. 56(c).
On appeal, Peele argues that Country
Mutual favored male and younger employees
over female and older employees, and that
the company used poor job performance as
a pretext to terminate her, because she
is an older woman, in violation of Title
VII and the ADEA. Title VII makes it
unlawful for employers to terminate
employees because of their sex, see 42
U.S.C. sec. 2000e-2(a)(1), and the ADEA
prohibits employers from terminating
employees on the basis of age. See 29
U.S.C. sec. 623(a). Because Peele
presents no direct evidence of
discrimination, her Title VII and ADEA
claims proceed under the burden-shifting
analysis of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See also
O’Regan v. Arbitration Forums, Inc., 246
F.3d 975, 983 (7th Cir. 2001).
Under McDonnell Douglas, a plaintiff
establishes a prima facie case of sex or
age discrimination if she demonstrates,
by a preponderance of the evidence, that:
(1) she is a member of a protected class;
(2) at the time of termination, she was
meeting her employer’s legitimate
employment expectations; (3) in spite of
meeting the legitimate employment
expectations of her employer, she
suffered an adverse employment action;
and (4) she was treated less favorably
than similarly situated male or younger
employees. See, e.g., Markel v. Bd. of
Regents of Univ. of Wisconsin Sys., 276
F.3d 906, 911 (7th Cir. 2002); Bennington
v. Caterpillar, Inc., 275 F.3d 654, 659
(7th Cir. 2001). Once the plaintiff
establishes a prima facie case of sex or
age discrimination, the employer, to
avoid liability, must then produce a
legitimate, nondiscriminatory reason for
the employee’s termination. See, e.g.,
Paluck v. Gooding Rubber Co., 221 F.3d
1003, 1009 (7th Cir. 2000). If the
employer offers a legitimate,
nondiscriminatory explanation for the
termination, the plaintiff must then
rebut that explanation by presenting
evidence sufficient to enable a trier of
fact to find that the employer’s
proffered explanation is pretextual. Id.
Pretext "means a dishonest explanation, a
lie rather than an oddity or an error."
Kulumani v. Blue Cross Blue Shield Ass’n,
224 F.3d 681, 685 (7th Cir. 2000). A
plaintiff does not reach the pretext
stage, however, unless she first
establishes a prima facie case of
discrimination. See, e.g., Coco v.
Elmwood Care, Inc., 128 F.3d 1177, 1179
(7th Cir. 1997); Robin v. Espo Eng’g
Corp., 200 F.3d 1081, 1090 (7th Cir.
2000); Plair v. E.J. Brach & Sons, Inc.,
105 F.3d 343, 347 (7th Cir. 1997).
A. The District Court’s Opinion
In rendering its opinion, however, the
district court bypassed the prima facie
analysis altogether, noting:
[L]ike the mine-run employment
discrimination case, this case boils down
to the plaintiff’s job performance. If
Country [M]utual has articulated a
legitimate reason for termination (and it
has, performance) then Peele must show
that reason was pretextual, a lie. Did
Country Mutual believe Peele performed
satisfactorily, i.e., was Country Mutual
lying when it said it was firing her for
performance reasons? The second prong of
the prima facie test merges with the
pretext inquiry in this situation, and it
makes more sense to simply proceed to the
ultimate issue of pretext in deciding the
summary judgment motion.
While it might be tempting to take the
"sensible" shortcut by jettisoning the
prima facie analysis altogether and
moving directly to the pretext inquiry,
this circuit does not endorse such a
practice. We have consistently held that
"the prima facie case under McDonnell
Douglas must be established and not
merely incanted." See, e.g., Coco, 128
F.3d at 1178. If a plaintiff is unable to
establish a prima facie case of
employment discrimination under McDonnell
Douglas, an employer may not be subjected
to a pretext inquiry. See, e.g.,
Contreras v. Suncast Corp., 237 F.3d 756,
761 (7th Cir. 2001); Espo Eng’g Corp.,
200 F.3d at 1090; Coco, 128 F.3d at 1179;
Plair, 105 F.3d at 347. As such, the
district court should have first
determined whether Peele established
prima facie cases of sex and age
discrimination before subjecting Country
Mutual to a pretext inquiry.
B. Prima Facie Analysis of Peele’s Claims.
We begin our analysis then by addressing
Country Mutual’s argument that Peele
failed to establish a prima facie case of
sex or age discrimination. The parties do
not dispute that Peele, a woman over the
age of 40, is a member of two protected
classes or that she suffered an adverse
employment action. Country Mutual does
contend, however, that Peele failed to
demonstrate that she was meeting the com
pany’s legitimate employment expectations
at the time of her termination and that
the company treated her less favorably
than similarly situated male or younger
employees. Country Mutual claims that the
documentary evidence of Peele’s
deteriorating job performance as a CR2 is
overwhelming and uncontested./8 The
company also argues that there is no
credible evidence to support her
allegations of disparate treatment.
According to Country Mutual, at the time
the company was documenting Peele’s
declining performance, both male and
younger employees were also being
disciplined or terminated for similar
performance deficiencies.
Peele does not challenge the validity or
veracity of the documentary evidence
submitted by Country Mutual to
demonstrate her poor job performance as a
CR2. Instead, she contends that the
company’s evidence is "weak at best," and
denies that her job performance was
materially deficient. Peele claims that
the company only found problems with a
"handful of the hundreds of files she
handled in 1998." She also points to the
depositions of former co-workers who
testified that she was performing her job
in a satisfactory manner at the time of
her termination. Additionally, Peele
contrasts her job performance reviews
with those of allegedly similarly
situated male and younger employees in an
attempt to demonstrate that the company
applied its legitimate employment
expectations against her in a disparate
manner. Finally, she argues that Country
Mutual’s allegations of poor job
performance are pretextual. According to
Peele, she was terminated as a result of
the company’s formal policy of cutting
costs by eliminating older workers
(through a voluntary early retirement
program), and because her supervisor,
Gary Hanenberger, wanted a "younger, more
male office."
1. Was Peele meeting Country Mutual’s
legitimate employment expectations at the
time of her termination?
The first question we must consider is
whether Peele was meeting Country
Mutual’s legitimate employment
expectations at the time of her
termination. "[T]he ’legitimate
expectations’ element in the ubiquitous
burden-shifting formula of McDonnell
Douglas [is crucial]." Coco, 128 F.3d at
1179. If a plaintiff fails to demonstrate
that she was meeting her employer’s
legitimate employment expectations at the
time of her termination, the employer may
not be "put to the burden of stating the
reasons for [her] termination." Coco, 128
F.3d at 1179. If the plaintiff has direct
evidence of discrimination "well and
good; but if he has nothing else, and is
therefore totally reliant on the
McDonnell Douglas formula, he is out of
luck if he can’t show that he was meeting
his employer’s legitimate expectations."
Id. See also Brummett v. Lee Enterprises,
Inc., 284 F.3d 742, 745 (7th Cir. 2002);
Contreras, 237 F.3d at 761; Espo Eng’g
Corp., 200 F.3d at 1090; Biolchini v.
Gen. Elec. Co., 167 F.3d 1151, 1154 (7th
Cir. 1999); Plair, 105 F.3d at 347.
After carefully reviewing the record, we
agree with Country Mutual that the
evidence of Peele’s deteriorating job
performance is overwhelming. In the 18
months leading up to her termination, she
was repeatedly warned by the company,
both verbally and in writing, that her
job performance was unacceptable. As our
recitation of the facts demonstrates,
Peele received no less than nine critical
written evaluations of her job
performance as a CR2. Time and time
again, Country Mutual informed Peele of
the specific deficiencies in her job
performance, and she failed to correct
them--despite being given numerous
opportunities by the company to do so.
Moreover, notwithstanding her allegations
of discrimination, Peele has never
challenged the veracity of any of the
performance deficiencies noted in the
company’s written evaluations of her job
performance, including those made by
Hanenberger.
Furthermore, while Peele casts
Hanenberger as the antagonist in this
case, the record clearly shows that
several of Country Mutual’s other
employees also criticized her job
performance as a CR2, and participated in
the decision- making process that
ultimately resulted in her termination.
The following facts are undisputed: (1)
Dennis Bates, Hanenberger’s predecessor,
criticized Peele’s job performance in
March 1997; (2) Donald Weber, a district
training coordinator, noted several
problems with Peele’s files after
reviewing the findings of a 1998
supervisor’s audit; (3) Michael Kearns, a
district manager, reviewed Peele’s files
in June 1998, and found several
performance deficiencies (e.g., calling
one file "a disgrace"); (4) Kearns and
Judy Garee, the company’s manager of
compensation, along with Hanenberger,
collectively made the decision to place
Peele on a provisional rating; and (5)
four employees were involved in the
decision to terminate Peele: Kearns,
Hanenberger, Garee, and Joe Painter, the
company’s director of claims. This
evidence shows that Hanenberger was not
alone in his criticism of Peele, and that
a consensus was reached by several
Country Mutual employees that her failure
to meet the company’s legitimate
employment expectations over an 18-month
period warranted her being terminated.
We are unpersuaded by Peele’s argument
that evidence of her poor job performance
must be balanced against the "favorable
performance reviews, raises, and
promotions" she received during her
eight-plus years with the company. In
most cases, when a district court
evaluates the question of whether an
employee was meeting an employer’s legit
imate employment expectations, the issue
is not the employee’s past performance
but "whether the employee was performing
well at the time of [her] termination."
Karazanos v. Navistar Intern. Transp.
Corp., 948 F.2d 332, 336 (7th Cir. 1991).
See also Fortier v. Ameritech Mobile
Communications, Inc., 161 F.3d 1106, 1113
(7th Cir. 1998). Furthermore, prior job
performance "evaluations, standing alone,
[do not] create a genuine issue of
triable fact when . . . there have been
substantial alterations in the employee’s
responsibilities and supervision in the
intervening period." Fortier, 161 F.3d at
1113 (emphasis added). The bulk of the
evidence documenting Peele’s performance
deficiencies relates to her tenure as a
CR2. Her responsibilities and work load
as a CR2 were substantially different
from those associated with her previous
positions. The positive performance
evaluations Peele received as a CR1, and,
to even a lesser extent as a CSR, are
therefore of no relevance.
Finally, we have held that the general
statements of co- workers, indicating
that a plaintiff’s job performance was
satisfactory, are insufficient to create
a material issue of fact as to whether a
plaintiff was meeting her employer’s
legitimate employment expectations at the
time she was terminated. See, e.g., Dey
v. Colt Constr. & Dev. Co., 28 F.3d 1446,
1460 (7th Cir. 1994) ("Our cases . . .
give little weight to statements by
supervisors or co-workers that generally
corroborate a plaintiff’s own perception
of satisfactory job performance."). See
also Anderson v. Baxter Healthcare Corp.,
13 F.3d 1120, 1125 (7th Cir. 1994);
Kephart v. Inst. of Gas Tech., 630 F.2d
1217, 1218-19, 1223 (7th Cir. 1980). For
all of the foregoing reasons, we conclude
that Peele was not meeting Country
Mutual’s legitimate employment
expectations at the time of her
termination.
2. Did Country Mutual apply its
legitimate employment expectations
against Peele in a discriminatory manner?
Peele argues, however, that even if she
was not meeting Country Mutual’s
legitimate employment expectations at the
time of her termination, she can still
establish prima facie cases of sex and
age discrimination because the company
applied its expectations against her in a
discriminatory manner. When a plaintiff
produces evidence sufficient to raise an
inference that an employer applied its
legitimate employment expectations in a
disparate manner (i.e., applied
expectations to similarly situated male
and younger employees in a more favorable
manner), the second and fourth prongs of
McDonnell Douglas merge--allowing the
plaintiff to establish a prima facie
case, stave off summary judgment for the
time being, and proceed to the pretext
inquiry. See, e.g., Curry v. Menard, 270
F.3d 473, 478 (7th Cir. 2001); Gordon v.
United Airlines, Inc., 246 F.3d 878, 886-
87 (7th Cir. 2001); Oest v. Illinois
Dept. of Corr., 240 F.3d 605, 612 n.3
(7th Cir. 2001); Flores v. Preferred
Tech. Group, 182 F.3d 512, 515 (7th Cir.
1999); Coco, 128 F.3d at 1180.
Peele claims that while the company
strictly enforced the Best Practices
standards against her, it did not do so
with respect to similarly situated male
and younger employees. A plaintiff may
demonstrate that another employee
is"similarly situated" to her by
"show[ing] that there is someone who is
directly comparable to her in all
material respects." Patterson v. Avery
Dennison Corp., 281 F.3d 676, 680 (7th
Cir. 2002). See also Greer v. Bd. of
Educ. of City of Chicago, Illinois, 267
F.3d 723, 728 (7th Cir. 2001); Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 617-
18 (7th Cir. 2000). In determining
whether employees are similarly situated,
"a court must look at all relevant
factors, the number of which depends on
the context of the case." Radue, 219 F.3d
at 617. Furthermore, "in disciplinary
cases--in which a plaintiff claims that
[she] was disciplined by [her] employer
more harshly than a similarly situated
employee based on some prohibited reason-
-a plaintiff must show that [she] is
similarly situated with respect to
performance, qualifications, and
conduct." Id. (emphasis added). "This
normally entails a showing that the two
employees dealt with the same supervisor,
were subject to the same standards, and
had engaged in similar conduct without
such differentiating or mitigating
circumstances as would distinguish their
conduct or the employer’s treatment of
them." Id. at 617-18 (emphasis added).
Specifically, Peele contends that
Hanenberger was far more critical in his
evaluations of female and older employees
than in those he conducted for similarly
situated male and younger employees. In
support of her argument, Peele identifies
four employees--Christopher Mason, Thomas
Kyle, Matthew Smith, and Laura Dempski,
who she claims are "similarly situated"
and were treated more favorably by the
company in the application of its
legitimate employment expectations./9
Peele begins by comparing her situation
to that of Christopher Mason, the
individual Country Mutual hired to
replace her. She contends that while the
company criticized Mason’s job
performance, it never disciplined him.
The criticisms Peele references, however,
are minor and quoted entirely out of
context./10 The record contains four
written evaluations of Mason’s job
performance, and each of them is
positive. Additionally, one of the
evaluations, a 1998 supervisor’s audit,
was conducted by Donald Weber, not
Hanenberger. This demonstrates that at
least one other employee at Country
Mutual was of the opinion that Mason was
meeting the company’s performance
expectations. For virtually identical
reasons, Laura Dempski is also not
similarly situated to Peele./11 In any
event, Country Mutual’s criticisms of
Mason and Dempski pale in comparison to
those lodged by the company against Peele
(i.e., nine critical written evaluations
in 18 months as a CR2), and therefore
neither is similarly situated to her for
purposes of establishing a prima facie
case of sex or age discrimination./12
As for Thomas Kyle and Matthew Smith,
even were we to assume that they were
similarly situated to Peele,/13 the
record clearly demonstrates that neither
of these gentlemen was treated in a more
favorable manner by Country Mutual. As
the district court noted, "the undisputed
evidence shows that Thomas Kyle was on
his way out for reasons akin to Peele,
and [that] Matthew Smith was also
terminated for similar reasons . . . ."
If a district court determines that a
plaintiff has failed to identify a
similarly situated co-worker outside of
her protected class, or that the co-
worker identified by the plaintiff, while
similarly situated, was not treated in a
more favorable manner, it need not
address any of the underlying allegations
of disparate treatment. See Patterson,
281 F.3d at 680 (holding that "we cannot
compare [an employer’s] treatment of [a
plaintiff with that co-worker] . . . [if
the plaintiff] fail[s] to meet her burden
of establishing that [the co-worker] is a
similarly situated employee."). See also
Radue, 219 F.3d at 618; Plair, 105 F.3d
at 350. Peele’s failure to offer such
"comparables" dooms her Title VII and
ADEA claims, see, e.g., Radue, 219 F.3d
at 619-20, and obviates the need to
address her particularized allegations of
disparate treatment by Country Mutual.
In this case, the record clearly
demonstrates that Peele’s job performance
was unsatisfactory. Furthermore, there is
no evidence that Country Mutual enforced
its legitimate employment expectations in
a disparate manner. As such, we are
unable to infer discriminatory intent
under the McDonnell Douglas framework.
See, e.g., Biolchini, 167 F.3d at
1154./14 Because Peele has failed to
establish prima facie cases of sex and
age discrimination, we need not address
her pretext argument. See, e.g., Foster
v. Arthur Andersen, LLP, 168 F.3d 1029,
1036 (7th Cir. 1999); Coco, 128 F.3d at
1178-79.
We, therefore, affirm the district
court’s decision to grant Country
Mutual’s motion for summary judgment, but
do so on the alternative ground that
Peele failed to make out a prima facie
case of sex or age discrimination. See,
e.g., Slaney v. The Int’l Amateur
Athletic Fed’n, 224 F.3d 580, 597 (7th
Cir. 2001) (holding "[a]n appellate court
may affirm the district court’s
[decision] on any ground supported by the
Record, even if different from the
grounds relied upon by the district
court.").
III.
For the foregoing reasons, we AFFIRM the
decision of the district court.
FOOTNOTES
/1 At that time, Country Mutual rated its CSRs as
"acceptable," "provisional," "competent," or
"commendable." A "competent" rating was the
second highest rating that a CSR could receive,
"commendable" being the highest.
/2 The "Meets Requirements" designation is defined
as follows: "Employee’s performance fully meets
the requirements/expectations of the position and
employee has demonstrated consistent effort,
expertise, and accomplishments."
/3 More specifically, Best Practices includes con-
tacting the insured within one hour of a claim,
obtaining an appraisal within 24 hours, collect-
ing witness statements within 24 hours, and
making a preliminary decision on the claim within
three days.
/4 Peele concedes that she was adequately trained
for the CR2 position, that she understood what
was required of the position, and that she chose
not to avail herself of certain company-paid
training opportunities.
/5 Bates did, however, temper his criticism of Peele
by noting "Pat is trying to get through a lot of
files that were left by Dennis [her predecessor]
and keep up with the files she is [currently]
getting."
/6 Every year, Country Mutual’s district claims
manager and claims supervisors travel to each of
the company’s claims offices (within a district)
to review, at random, the files of all claims
representatives.
/7 Country Mutual hired another CR2, Laura Dempski
(then age 32), for the Grayslake office less than
two months after Peele’s termination.
/8 Country Mutual argues that Peele’s job perfor-
mance began deteriorating in January 1997, when
she was promoted to CR2, and got progressively
worse until she was terminated by the company in
August 1998.
/9 At the time of Peele’s termination, Mason was 24
and Dempski was 32. In 1996, Country Mutual hired
Kyle at age 31 and Smith at age 28.
/10 Peele notes that: (1) in Mason’s March 1999
quarterly review, Hanenberger advised him that he
needed to improve his contacts with insureds; and
(2) a 1998 supervisor’s audit advised Mason that
he needed to "watch comparative," and noted that
one of his files did not contain a police report.
/11 Dempski was hired by Country Mutual as a CR2 for
the company’s Grayslake office two months after
Peele’s termination. Peele only refers to one
written evaluation of Dempski’s performance by
Hanenberger. This evaluation, an annual review
from 1999, contains some criticisms, but also
concludes that Dempski’s overall job performance
that year was "good."
/12 Furthermore, none of the excerpts Peele referenc-
es from the depositions of Dawn Jones (CR2),
Joyce Harrington (CSR), and Merrill Drake (ap-
praiser)--all former employees of Country Mutual
who criticize Mason’s job performance--undermines
our conclusion in this regard. As plaintiff,
Peele had the burden of establishing by a prepon-
derance of the evidence that she and Mason were
similarly situated. See, e.g., Patterson, 281
F.3d at 680. The deposition excerpts she relies
on, however, are merely assertions by co-workers
that they believed Peele was a better CR2 than
Mason. They do not, however, specifically chal-
lenge the veracity of the positive performance
evaluations given to Mason by Hanenberger and
Weber. Nor do any of their statements establish
that Mason’s situation was in any way comparable
to Peele’s. Furthermore, there is nothing in the
record indicating that these non-managerial co-
workers were in a position to offer meaningful
comparisons of the respective job performances of
these two individuals. The deposition excerpts
are, therefore, insufficient to demonstrate that
Mason and Peele were similarly situated. See Dey,
28 F.3d at 1460; Anderson, 13 F.3d at 1125;
Kephart, 630 F.2d at 1218-19, 1223.
/13 It is certainly debatable whether Kyle and Smith
are similarly situated to Peele. Kyle had a more
advanced position than Peele, he was a CR3 (i.e.,
he handled bodily injury claims) with "property
duties," and Matthew Smith was a CR1.
/14 In passing, we note that Peele’s allegation that
Country Mutual discriminated against its older
workers by offering them, in February 1998, the
opportunity to participate in a voluntary early
retirement program ("VERP") is without merit. As
we noted in Henn v. Nat’l Geographic Soc., 819
F.2d 824, 828 (7th Cir. 1987), "an offer of
incentives to retire early is a benefit to the
recipient, not a sign of discrimination." Addi-
tionally, Peele’s speculation that Country Mutual
stood to save money if she retired early, and
therefore retaliated against her when she de-
clined to accept the company’s VERP offer, is
undermined by the evidentiary record. Just one
month after the deadline for participating in
VERP expired, Peele informed Country Mutual that
she wished to participate in VERP. The company,
however, advised her that the window for accept-
ing the early retirement package had closed.