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Widmar v. Sun Chemical Corp.

United States Court of Appeals, Seventh Circuit

November 19, 2014

GEORGE WIDMAR, Plaintiff-Appellant,
SUN CHEMICAL CORP., et al., Defendants-Appellees

Argued December 10, 2013

Page 458

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11-C-1818 -- Harry D. Leinenweber, Judge.

For George Widmar, Plaintiff-Appellant: Ruth I. Major, Attorney, Law Offices of Ruth I. Major, PC, Chicago, IL.

For SUN CHEMICAL CORPORATION, a corporation, CHARLES RAMSEY, an individual, Defendants-Appellees: Susan M. Benton, Greensfelder, Hemker & Gale, PC, Chicago, IL.

Before MANION, ROVNER, and HAMILTON, Circuit Judges.


Page 459

Rovner, Circuit Judge

George Widmar worked for Rycoline Products, Inc. (which was acquired later by Sun Chemical Corporation) as a Plant Manager for sixteen years. Sun Chemical's National Manufacturing Manager, Keith Roberts, terminated Widmar's employment on November 18, 2009, claiming that the company was unsatisfied with Widmar's performance. Widmar alleges that Sun Chemical unlawfully terminated him because of his age, and then defamed him by speaking ill of his work performance to others. The district court granted Sun Chemical's motion for summary judgment and we affirm.


Ordinarily we begin by reciting the facts in the light most favorable to the plaintiff. In this case, the parties present a mountain of competing facts. Generally, when the fact sections of the opposing briefs read like two unrelated stories, that is a clue for a court to look for material facts that require a trial to resolve. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). That certainly seemed to be the case here. Moreover, the plaintiff's contention that summary judgment was improper was based, in part, on language in the district court opinion which might be understood as taking facts in a light more favorable to the employer. For example, the district court stated that Widmar's declaration and deposition were " not only self-serving, but also irrelevant in establishing that age was a motivating factor in his termination." (R. 201, p.6). Self-serving affidavits can indeed be a legitimate

Page 460

method of introducing facts on summary judgment. See Hill v. Tangherlini, 724 F.3d 965, 967-68 & n.1 (7th Cir. 2013); Payne, 337 F.3d at 773.[1]

On the other hand, a plaintiff seeking to thwart summary judgment must comply with Federal Rule of Civil Procedure 56(e) and Federal Rule of Evidence 602, both of which require that testimony be based on personal knowledge. Personal knowledge can include reasonable inferences, but it does not include speculating as to an employer's state of mind, or other intuitions, hunches, or rumors. Payne, 337 F.3d at 772.

Moreover, " [a] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal citations omitted). And, of course, any disputed facts must be material. " By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. (emphasis in original). Evidence supporting or opposing summary judgment must be admissible if offered at trial, except that affidavits, depositions, and other written forms of testimony can substitute for live testimony. Malin v. Hospira, Inc., 762 F.3d 552, 554-55 (7th Cir. 2014).

Widmar's facts suffer from several of these deficiencies. For example, in Widmar's recitation of facts, he states, " Mr. Roberts blamed Widmar for many of the problems involving Rycoline products even when Mr. Roberts was aware that the problems were caused by others outside Mr. Widmar's department and outside of his control." (Widmar opening brief at p.5). The gist of his case is that Sun Chemical falsely blamed Widmar to cover up for the fact that it was firing him because of his age. To support this, he cites to his own deposition in which he testifies as follows:

Although through the process of resolving the problems Mr. Roberts repeatedly learned that I was not at fault, he nevertheless blamed all of the problems on me in order to support his decision to terminate me. For example, in October of 2009, Mr. Roberts blamed me for

Page 461

inaccurate labels even though the Lab prepared the labels. At this time, he knew that Doug Gillam was responsible for, and controlled, the label instructions.

(R. 194-1 at p.3). He then goes on to list several more examples of times when a problem was caused by a different person or practice for which he was not in charge. As we will explore in further detail below, the fault with using this type of evidence is that it speculates as to the employer's state of mind and attempts to substitute Widmar's judgment (and thus ours) for that of the employer. Neither type of evidence is sufficient to create a material dispute of fact that will defeat a claim of summary judgment. See Silverman v. Bd. of Educ. of City of Chicago, 637 F.3d 729, 737 (7th Cir. 2011) (employer's disagreement with employee's evaluation does not present a genuine issue of material fact). Because Widmar's legitimate ...

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