Teruggi v. CIT Group/Capital Finance, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2314
M ICHAEL A. T ERUGGI,
Plaintiff-Appellant,
v.
T HE CIT G ROUP/C APITAL F INANCE, INC.,
d/b/a CIT R AIL,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:11-cv-00216—Ronald A. Guzman, Judge.
A RGUED N OVEMBER 30, 2012—D ECIDED F EBRUARY 21, 2013
Before B AUER, R OVNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Michael A. Teruggi alleges that
his former employer discharged him in retaliation for
filing a workers’ compensation claim and because of his
age and disability. To support his claims, Teruggi offers
what he perceives to be a “convincing mosaic of circum-
stantial evidence.” His former employer argues that the
termination was the result of Teruggi’s failure to protect
2 No. 12-2314
confidential information belonging to the company’s
suppliers, in violation of its code of conduct.
The district court granted summary judgment in the
employer’s favor, finding that Teruggi’s mosaic of cir-
cumstantial evidence was less than convincing. We agree.
To survive summary judgment, Teruggi must offer evi-
dence that allows a reasonable factfinder to infer that
his employer discriminated against him because of his
age or disability or retaliated against him as a result of
his workers’ compensation claim. The bits of evidence
Teruggi offers, which are essentially isolated events or
comments with no apparent connection to the termina-
tion decision, do not support a reasonable inference of
discrimination or retaliatory discharge, either indi-
vidually or collectively. Therefore, we affirm.
I. BACKGROUND
Michael Teruggi, an Illinois resident, worked for the
CIT Group d/b/a CIT Rail (“CIT”), a Delaware corpora-
tion, out of its Chicago facility from July 1997 until his
discharge in February 2009. Throughout his employment
with CIT, Teruggi held the title of vice president.
In April 2002, Teruggi suffered a workplace injury to
his right hand. In 2006, doctors amputated the little
finger on his right hand and removed the connecting
bones to his wrist. CIT’s health insurance carrier
disagreed with CIT’s workers’ compensation carrier
over responsibility for the medical bills. At the encour-
agement of Joanna Spano, a member of CIT’s human
No. 12-2314 3
resources department, and George Cashman, Teruggi’s
supervisor at the time, Teruggi filed a workers’ compensa-
tion claim in 2005 and won a settlement of $35,000 in
May 2007. According to Teruggi, Cashman asked Teruggi
whether he received the settlement check around
June 2007.
Following his injury, Teruggi requested accommoda-
tions at work. Because he had difficulty carrying his
laptop, Teruggi asked his immediate supervisor, senior
vice president Matt Shanahan, for permission to use a
backup disk drive to transfer internal CIT documents to
his home computer. Shanahan approved the request. In
addition, Steve McClure, then president of CIT, ap-
proved Teruggi’s request to transfer CIT documents
and communications to his personal Yahoo! email ac-
count. But when Teruggi later asked for a left-handed
keyboard, Cashman, who became CIT’s president in
August 2006, denied the request.
Cashman made several comments that Teruggi charac-
terizes as discriminatory. In either 2005 or 2006, while
Cashman and Teruggi were discussing Cashman’s plan
to retire at 55, Teruggi asked Cashman what he would
do in retirement. Cashman replied that he would play
golf and have fun. Teruggi responded, “[N]ot me. I’ll be
here till I’m 70 if I’m a day.” In 2006, Cashman sent a
memo to all CIT salespeople that ended with the sen-
tence, “I’m sure everyone will understand my thought
process with the exception of Teruggi since he’s OLD.” At
an August 2007 customer event, Cashman, Teruggi,
and their wives were socializing when the conversation
4 No. 12-2314
turned to the fact that Teruggi “loves his job, and since
his hand injury, he can’t play golf, this is all he does . . . .”
(It is not clear from the record who made this statement.)
Cashman then asked how much longer Teruggi would
work, and Teruggi responded that he would work until
he was 70. And during a January 2009 meeting with
CIT salespeople and new employees, Cashman rejected
a proposal Teruggi made and remarked that Teruggi
was “back on drugs.”
In 2007, CIT created a senior vice president and
general manager position to oversee locomotive leasing
and maintenance of the locomotive fleet. After CIT’s
senior management team interviewed Dan DiStefano,
who worked at Siemens Transportation Group, and
other candidates, it offered DiStefano the position.
Because DiStefano was not a United States citizen, how-
ever, CIT was required to post the position internally
before he could accept it.
Teruggi applied for the new position after CIT offered
it to DiStefano, but Cashman, who considered Teruggi
to be a salesperson rather than a business leader, was
skeptical of Teruggi’s qualifications for the position.
Cashman also noted that Teruggi had “excessive inter-
personal” conflicts with employees in two of the depart-
ments the new senior vice president would oversee.
Nonetheless, following CIT’s policy of interviewing all
internal candidates, Cashman, Shanahan, and others
interviewed Teruggi over several days in August 2007.
The company then again offered the position to
DiStefano, who accepted it.
No. 12-2314 5
In February 2008, Teruggi received an email sent by a
CIT employee announcing the promotion of Richard
Latini, a former CIT employee who worked for a com-
petitor. The subject line was “Competitive Information,”
and the email was labeled as “high” importance. Within
minutes of receiving the email, Teruggi forwarded it to
Latini, who was a friend of his. When CIT senior vice
presidents, including DiStefano, learned that someone
had forwarded an internal email outside the company,
they grew concerned. Suspecting that Teruggi sent the
email, Cashman ordered Susan Kiefer, vice president
of human resources, to monitor Teruggi’s work email
account.
Kiefer, concerned that Teruggi was sharing “confiden-
tial, proprietary, highly sensitive” information that
would be useful for the company’s competitors, focused
her monitoring on emails Teruggi sent to recipients
not connected to CIT or to his personal account. Kiefer
did not know why Teruggi sent emails to a personal
account, and Shanahan, who had previously authorized
Teruggi to use various means to transfer documents,
had left the company by this time. Kiefer conveyed her
concerns about Teruggi’s emails to DiStefano, Cashman,
senior vice president of human resources Tessie Massa,
and in-house counsel. Because they did not know
what Teruggi was doing with the documents, they in-
structed Kiefer to continue monitoring his account. She
did so for nearly a year.
In August 2008, CIT’s chief counsel sent an email to
all personnel reminding them of code of conduct require-
6 No. 12-2314
ments regarding confidential information. The email
included the directive: “[f]or avoidance of any uncer-
tainty, you should not email proprietary information to
any non-CIT email address or retain copies for your
personal files.” Despite this warning, Teruggi continued
to send emails to his personal account, including docu-
ments about freight car leasing, although the primary
focus of his job was locomotive leasing.
On January 16, 2009, David Nahass from Railroad
Financial, which specializes in financing rail projects,
requested information from Teruggi about the number
of new locomotive units delivered to CIT in 2008 and
the number projected for 2009. Nahass had first re-
quested this information from John Cavanaugh, director
of marketing administration for Electro-Motive Diesel
(“EMD”), which supplied locomotives to CIT. Upon
learning that Cavanaugh was out of the office, he sent
the request to Teruggi. That day, Teruggi sent an email
to James Schnabel of EMD, saying that he was “being
asked by our NY folks how many new locomotives
were built in 08 and what is the projection for 09.” On
January 21, Schnabel sent Teruggi the production
estimates along with a confidentiality notice that stated,
in relevant part, “This email and any files transmitted
with it are confidential and/or copyrighted material of
Electro-Motive Diesel, Inc.” Teruggi forwarded Schnabel’s
email to Nahass that day and the following day, he
sent it to Lawrence Beal, president of National Railway
Equipment Company, a locomotive rebuilding and manu-
facturing company. Teruggi did not inform Schnabel
that he would share the information with anyone out-
No. 12-2314 7
side of CIT before doing so. On January 20, Cavanaugh
responded to Nahass’s original request, although with
numbers that were different from—and according to
CIT, more generic than—the ones Teruggi provided.
Kiefer discovered Teruggi’s emails to Nahass, Schnabel,
and Beal on January 27, during the course of her
regular monitoring of Teruggi’s work email account. She
conferred with DiStefano, who first tried to replicate
the data from publicly available industry reports and
then concluded that the information was confidential
to EMD. Kiefer then conferred with Cashman, Massa,
and in-house counsel. Cashman contacted CIT personnel
based in New York and was unable to confirm that
any New York CIT employee requested this informa-
tion. Massa and Kiefer then determined that an internal
auditor should investigate the matter, with Massa
assisting the auditor because Kiefer was leaving the
country for vacation. As a part of the half-day investiga-
tion, the auditor interviewed Cashman, DiStefano, and
Teruggi. At the conclusion of the investigation, Massa
recommended to Cashman that Teruggi be discharged
due to violations of the code of conduct including
failure to protect confidential information of suppliers
like EMD. Cashman decided to discharge Teruggi but
delayed the termination until February 3, 2009, so
that Teruggi could receive his 2008 bonus. Teruggi was
59 years old at the time of his discharge.
In 2010, Teruggi filed a lawsuit against CIT in state
court, alleging age and disability discrimination in viola-
tion of the Illinois Human Rights Act (“IHRA”), 775 Ill.
8 No. 12-2314
Comp. Stat. 5/1-101 et seq., as well as retaliatory
discharge, a common-law tort in Illinois. After CIT re-
moved the case to federal court, Teruggi amended his
complaint and added claims under the Age Discrimina-
tion in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq.,
and the Americans with Disabilities Act (“ADA”),
42 U.S.C. §§ 12101 et seq. The district court granted CIT’s
motion for summary judgment on all claims, and
Teruggi filed a timely notice of appeal.
II. ANALYSIS
The issue before us is whether Teruggi has presented
evidence sufficient to raise a genuine issue of material
fact as to whether CIT terminated his employment based
on his age, disability, or workers’ compensation claim.
After reviewing the record, we determine that he has not.
A. The Evidence Does Not Support an Inference of
Age or Disability Discrimination
A party alleging discrimination under the ADA, ADEA,
or IHRA may proceed under the direct or indirect
method of proof and may rely on circumstantial
evidence to meet his burden. Atanus v. Perry, 520 F.3d
662, 671 (7th Cir. 2008) (ADEA); Buie v. Quad/Graphics,
Inc., 366 F.3d 496, 503 (7th Cir. 2004) (ADA); see Zaderaka
v. Ill. Human Rights Comm’n, 545 N.E.2d 684, 687 (Ill.
1989) (age discrimination claims under the IHRA should
be analyzed in the same way as ADEA claims); see also
Luckett v. Human Rights Comm’n, 569 N.E.2d 6, 14 (Ill. App.
No. 12-2314 9
Ct. 1989) (“When analyzing claims of discrimination
under the [IHRA], Illinois courts have looked to the
standards applicable to analogous federal claims.”).
Teruggi has chosen to use the direct method with cir-
cumstantial evidence. To survive summary judgment
on his claims under the ADA, ADEA, and IHRA, he
must offer evidence from which an inference of discrim-
inatory intent can be drawn, such as: “(1) suspicious
timing; (2) ambiguous statements or behavior towards
other employees in the protected group; (3) evidence,
statistical or otherwise, that similarly situated em-
ployees outside of the protected group systematically
receive better treatment; and (4) evidence that the em-
ployer offered a pretextual reason for an adverse em-
ployment action.” Dickerson v. Bd. of Trs. of Cmty. Coll.
Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). A party
may combine these various types of evidence to present
a “ ‘convincing mosaic’ of circumstantial evidence” from
which a factfinder can make a reasonable inference of
discriminatory intent. Rhodes v. Ill. Dep’t. of Transp., 359
F.3d 498, 504 (7th Cir. 2004) (quoting Troupe v. May
Dep’t Stores Co., 20 F.3d 734, 737 (7th Cir. 1994)); but see
Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d
9900, 904 (7th Cir. 2006) (“But it was not the intention in
Troupe to promulgate a new standard, whereby circum-
stantial evidence in a discrimination or retaliation case
must, if it is to preclude summary judgment for the
defendant, have a mosaic-like character.”). Teruggi’s
evidence consists of events that began with his 2005
workers’ compensation claim and 2007 settlement and
that concluded with his 2009 discharge, including
10 No. 12-2314
Cashman’s comments, the “sham” interview for the
senior vice president position, the company’s decision
to monitor his email account rather than counsel or disci-
pline him, and the hasty investigation into his alleged
misconduct. This evidence falls far short of what is neces-
sary to support a reasonable inference of age or disabil-
ity discrimination.
To be convincing, Teruggi’s evidence “must point
directly to a discriminatory reason for the employer’s
action . . . and be directly related to the employment
decision.” Dass v. Chi. Bd. of Educ., 675 F.3d 1060, 1071
(7th Cir. 2012) (internal quotation marks and citation
omitted). Teruggi’s evidence does not point to discrim-
ination. Rather, he has offered “an amorphous litany of
complaints about a myriad of workplace decisions.”
Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th
Cir. 2001). For example, he expresses frustration over
CIT’s decisions to interview him after offering the
senior vice president position to DiStefano, to monitor
his email account for nearly a year without informing
him, and to discharge him for what he believes is an
inconsequential violation of company policy.1 Yet these
1
Teruggi’s recitation of relevant facts includes other avenues
he may have pursued, for example, failure to accommodate
(based on Cashman’s denial of his request for a left-handed
keyboard) and failure to promote (based on the senior vice
president position that went to DiStefano). But Teruggi has
identified the termination decision as the relevant adverse
employment action. And even if he had advanced a failure
(continued...)
No. 12-2314 11
complaints do not point to discriminatory intent, either
individually or collectively. We know nothing about
DiStefano’s age or disability status to support an
inference that CIT wanted him in the senior vice
president position because he was younger than
Teruggi or not disabled. And the company’s decision to
monitor Teruggi’s work email for over a year rather than
discipline him for sending emails to his personal email
account does not hint of discrimination. Neither, for that
matter, does Teruggi’s argument that the company
should not have fired him for what he perceives to be
a minor violation of company policy because the
supplier later disclosed the same information. At best,
Teruggi’s evidence calls into question the wisdom of
Cashman’s discharge decision. But we are not ultimately
concerned with whether CIT made the right decision
when it terminated Teruggi’s employment; rather, we
focus our inquiry on whether Teruggi has presented
evidence from which a factfinder can make the rea-
sonable inference that CIT made a discriminatory
decision based on Teruggi’s age or disability.
To the extent that Teruggi argues that CIT’s reason
for discharging him is pretextual, his evidence does not
support that inference. An unwise employment decision
does not automatically rise to the level of pretext; rather,
a party establishes pretext with evidence that the em-
(...continued)
to accommodate or promote action, the evidence in the record
is plainly insufficient to support either of these claims.
12 No. 12-2314
ployer’s stated reason or the employment decision “was
a lie—not just an error, oddity, or oversight.” Van
Antwerp v. City of Peoria, Ill., 627 F.3d 295, 298 (7th Cir.
2010). And none of Teruggi’s evidence shows that
Cashman’s stated reason for Teruggi’s discharge was a
lie. Even if Teruggi’s evidence showed pretext, that
alone would not be sufficient to survive summary judg-
ment under the direct method. Van Antwerp, 627 F.3d
at 298 (“Evidence offered under the direct method
‘must allow a jury to infer more than pretext; it must
itself show that the decisionmaker acted because of the
prohibited animus.’ ” (quoting Venturelli v. ARC Cmty.
Servs., Inc., 350 F.3d 592, 601 (7th Cir. 2003)).
The strongest pieces of Teruggi’s mosaic that could
point to age or disability discrimination are Cashman’s
comments about Teruggi’s retirement plans, being
“old,” and being on drugs, but even those are not
sufficient either alone or when combined with the rest of
the evidence to point to a discriminatory motive. To raise
an inference of discrimination, comments must be
“(1) made by the decision maker, (2) around the time
of the decision, and (3) in reference to the adverse em-
ployment action.” Hemsworth v. Quotesmith.com, Inc.,
476 F.3d 487, 491 (7th Cir. 2007). Although Cashman
made the decision to discharge Teruggi, the comments
he made about Teruggi’s age and disability predated
the termination decision by at least eighteen months
and were not in reference to the adverse employment
action. And to the extent that one might interpret
Cashman’s January 2009 statement that Teruggi was
No. 12-2314 13
“back on drugs” as related to either Teruggi’s age or his
disability, there is no apparent connection between
that comment and the termination decision.
Ultimately, the evidence that Teruggi presents is
either irrelevant or insufficient to lead to a reasonable
inference of discrimination. See Gorence, 242 F.3d at 763(“And it is simply not true, we want to emphasize, that
if a litigant presents an overload of irrelevant or
nonprobative facts, somehow the irrelevancies will add
up to relevant evidence of discriminatory intent. They
do not; zero plus zero is zero.”).
B. The Evidence Does Not Support an Inference
of Retaliatory Discharge
To establish retaliatory discharge under Illlinois
common law, a plaintiff must show that he was
“(1) discharged; (2) in retaliation for [his] activities; and
(3) that the discharge violates a clear mandate of public
policy.” Blount v. Stroud, 904 N.E.2d 1, 9 (Ill. 2009) (quoting
Hinthorn v. Roland’s of Bloomington, Inc., 519 N.E.2d 909,
911 (Ill. 1988)). The Illinois Supreme Court has held that
a plaintiff satisfies the third prong “when an employee
is discharged for filing, or in anticipation of the filing of,
a claim under the Workers’ Compensation Act.” Jacobson
v. Knepper & Moga, P.C., 706 N.E.2d 491, 493 (Ill. 1998).
And because CIT terminated Teruggi’s employment,
the only issue that remains is causation—that is, whether
the discharge was in retaliation for Teruggi’s workers’
compensation claim. As with his discrimination claims,
14 No. 12-2314
Teruggi may rely on circumstantial evidence to meet
his burden of proof. Jackson v. Bunge Corp., 40 F.3d 239,
242 (7th Cir. 1994).
Teruggi relies on the same evidence for his discrimina-
tion and retaliatory discharge claims. That evidence is
no more convincing for the latter than it is for the for-
mer. Teruggi filed his workers’ compensation claim
in 2005, more than three years before his discharge.
And although he argues that his discharge was in re-
taliation for the $35,000 settlement he won in May 2007,
the settlement predated the termination by more than
eighteen months. And without any connection between
the claim and his termination, this timing is not at all
suspicious. See Lang v. Ill. Dep’t of Children & Family
Servs., 361 F.3d 416, 419 (7th Cir. 2004) (“Close temporal
proximity provides evidence of causation and may
permit a plaintiff to survive summary judgment
provided that there is also other evidence that supports
the inference of a causal link.” (citations omitted)). Fur-
thermore, Teruggi pursued the workers’ compensation
claim at the urging of Cashman, who made the
discharge decision, and a member of CIT’s human re-
sources department. While it is entirely possible that a
supervisor may encourage an employee to file a claim
for workers’ compensation and then turn around and
discharge that employee for doing so, no evidence pre-
sented by Teruggi suggests that occurred here.
No. 12-2314 15
III. CONCLUSION
For the foregoing reasons, we A FFIRM the judgment of
the district court.
2-21-13