Luciano Franzoni v. Hartmarx Corporation , a Delaware corporation, M. WILE & C O ., INC ., a New York…

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2853
L UCIANO F RANZONI ,
Plaintiff-Appellant,
v.
H ARTMARX C ORPORATION , a Delaware corporation,
M. W ILE & C O ., I NC ., a New York corporation, and
H ART S CHAFFNER & M ARX , a New York corporation,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 4898—Harry D. Leinenweber, Judge.
____________
A RGUED J ANUARY 25, 2002—D ECIDED A UGUST 8, 2002
____________
Before M ANION , K ANNE , and W ILLIAMS , Circuit Judges.
K ANNE , Circuit Judge. Plaintiff Luciano Franzoni
brought suit against defendant Hartmarx Corporation and
its wholly-owned subsidiaries M. Wile & Co. Inc. and Hart
Schaffner & Marx (“HSM”) for retaliatory discharge, re-
taliatory transfer, and age discrimination pursuant to the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 621 et seq. The district court granted judgment in favor
of defendants, and we affirm.

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2 No. 01-2853
I. History
The following facts are undisputed unless otherwise
noted: Franzoni is a fashion designer who began working
for HSM on November 18, 1968, conducting seminars, meet-
ings, and trunk shows at which he would discuss HSM
clothing. In late 1988, Hartmarx created a new cloth-
ing line using Franzoni’s name, called Confezioni Riserva
Luciano Franzoni (the “Franzoni” line). Hartmarx then
transferred Franzoni from HSM to M. Wile & Co. Inc., d/b/a
International Brand Apparel (“IBA”). The idea behind the
Franzoni line was to create a style of clothing with an
Italian name and personality. While at IBA, Franzoni’s
principal responsibilities consisted of the same type of
work he had done at HSM, essentially promotion, although
Franzoni also advised the Franzoni line designers regard-
ing style, fabric, and color.
In September 1997, Franzoni requested a meeting with
Homi Patel, the president and Chief Operating Officer of
Hartmarx, in order to present Patel with a memorandum
requesting additional compensation. During that meeting,
Patel noted that Franzoni was seventy-one years of age
and told Franzoni that he looked to be in his early sixties.
Franzoni thanked Patel for the compliment, and Patel then
explained to Franzoni that IBA was discontinuing the
Franzoni line. Therefore, because Franzoni’s only job at
IBA was to promote and assist with the Franzoni line,
there would no longer be a job for Franzoni once the line
was discontinued. According to Franzoni, Patel stated that
Franzoni would have to retire from IBA and suggested his
thirtieth anniversary with the company—November 18,
1998—as an appropriate retirement date. Defendants con-
cede that Patel and Franzoni discussed Franzoni’s retire-
ment, but contend that Patel and Franzoni mutually agreed
on the retirement date. Both parties agree that Patel in-
structed Franzoni to negotiate his retirement package with
Joseph Conti, an IBA executive.

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No. 01-2853 3
Subsequent to the September 1997 meeting, Conti and
Franzoni attempted to negotiate Franzoni’s retirement
package, while Franzoni continued to promote the Franzoni
line. On April 27, 1998, Conti sent Franzoni a finalized
version of the retirement package, which Franzoni refused
to sign. In early June 1998, Franzoni told Conti that he
had decided not to retire and that he had filed a charge of
age discrimination with the EEOC, alleging that he was
being forced to retire. On July 1, 1998, IBA again informed
Franzoni that it planned to eliminate the Franzoni line
and with it Franzoni’s promotional position. Patel then
requested that Kenneth Hoffman, the HSM Chairman and
Chief Executive Officer, find Franzoni a position at HSM,
and Hoffman offered Franzoni a quality control position
in HSM’s factory in Des Plaines, Illinois (the “Des Plaines
position”), which Franzoni accepted. Franzoni contends
that the Des Plaines position was a demotion in retaliation
for filing his complaint with the EEOC. While the parties
dispute the working conditions at Franzoni’s job at the Des
Plaines facility, it is undisputed that the Des Plaines
position required Franzoni to stand on his feet to work
and that Franzoni’s pay and benefits were identical to those
he had received at IBA while promoting the Franzoni line.
On August 21, 1998, Franzoni left the Des Plaines facil-
ity before the end of his workday and went to the hos-
pital, claiming that his feet hurt. That was his last day
of work. On August 24, 1998, Franzoni’s attorney sent
HSM a letter from Franzoni’s doctor stating that Franzoni
could work in any capacity that did not require him to
stand for extended periods. Franzoni’s attorney then re-
quested that HSM accommodate his needs and return
him to work. On August 28, 1998, HSM placed Franzoni
on medical leave under the Family and Medical Leave
Act (“FMLA”), although Franzoni claims that HSM put
him on FMLA leave involuntarily. On September 4, 1998
and October 10, 1998, Franzoni wrote to his supervisor in-
dicating that the pain was still present, and on September

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4 No. 01-2853
1 During the time he was on medical leave, HSM continued to pay
Franzoni his full salary.
15, 1998, Franzoni filed a workers’ compensation claim
alleging that he had incurred “permanent” damage to his
feet. 1 HSM’s workers’ compensation carrier conducted a
routine investigation of Franzoni’s physical condition, and
at the conclusion of its investigation, the carrier sent to
HSM a videotape made by its investigators. According to
defendants, the videotape showed Franzoni taking a long
walk and a shorter walk without any apparent pain or
discomfort. Ronnie Robinson, HSM’s senior vice president
of human resources and administration, reviewed the vid-
eotape and concluded that Franzoni had lied in his let-
ters that stated that he was unable to work. Subsequently,
Robinson sent Franzoni a letter stating that Franzoni
was terminated because he had made “false and mislead-
ing statements” about his medical condition.
Franzoni then filed a complaint in the Northern Dis-
trict of Illinois, alleging age discrimination and retalia-
tion with respect to (1) his termination from the Des
Plaines facility, (2) his “transfer” to the Des Plaines facility,
and (3) the elimination of his position at IBA (“job elim-
ination claim”). Defendants subsequently moved for sum-
mary judgment on all claims, which was granted by the
district court as to Franzoni’s termination and transfer
claims but denied as to Franzoni’s job elimination claim.
The district court later granted defendants’ motion to
dismiss the elimination claim as moot under Rule 12(b)(1)
of the Federal Rules of Civil Procedure and entered judg-
ment in favor of defendants on all claims.
II. Analysis
We review the district court’s grant of summary judg-
ment de novo, viewing all of the facts and drawing all

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No. 01-2853 5
reasonable inferences therefrom in favor of the nonmoving
party, Franzoni. See Cent. States, Southeast and Southwest
Areas Pension Fund v. White, 258 F.3d 636, 639 (7th Cir.
2001). We review the district court’s decision to dismiss
the claim as moot under Rule 12(b)(1) of the Federal Rules
of Civil Procedure de novo, and we “must accept the com-
plaint’s well-pleaded factual allegations as true and draw
reasonable inferences from those allegations in the plain-
tiff’s favor.” Transit Express, Inc. v. Ettinger, 246 F.3d
1018, 1023 (7th Cir. 2001). As discussed below, our conclu-
sion that defendants lawfully terminated Franzoni from
the Des Plaines facility renders his remaining claims
moot because the ADEA provides no remedies to a plain-
tiff in Franzoni’s unique situation. Therefore, we first
turn to his termination from the Des Plaines facility.
A. Des Plaines Position
a. Age Discrimination
Franzoni contends that he was terminated from the Des
Plaines position in violation of the ADEA. A plaintiff in
an employment discrimination action may prove discrim-
ination either through direct evidence or through indirect
evidence, using the McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), bur-
den-shifting approach. See Randle v. LaSalle Telecomms.,
Inc., 876 F.2d 563, 567-69 (7th Cir. 1989). We first re-
ject Franzoni’s argument that Patel’s alleged statements
during the September 1997 meeting—eighteen months be-
fore his eventual termination—constitute direct evidence
of discrimination. Franzoni acknowledges that Robinson,
not Patel, terminated his position but contends that “[i]t is
inconceivable that Patel would not have been involved in
Franzoni’s termination.” Franzoni’s speculation aside, he
has failed to offer any evidence on this issue, and thus, his
“direct” evidence claim must be rejected. See Hall v. Bodine
Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002) (“It is well

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6 No. 01-2853
settled that conclusory allegations . . . without support
in the record, do not create a triable issue of fact.”).
Because Franzoni has no direct evidence of discrimina-
tion, we must apply the McDonnell Douglas burden-shifting
method of proof. Under this method, the employee must
first present a prima facie case of age discrimination. See
Pitasi v. Gartner Group, Inc., 184 F.3d 709, 716 (7th Cir.
1999). To 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 ex-
pectations; (3) he suffered an adverse employment action;
and (4) similarly situated, substantially younger employ-
ees were treated more favorably. See Wade v. Lerner New
York, Inc., 243 F.3d 319, 322 (7th Cir. 2001). If Franzoni
succeeds in establishing a prima facie case, a presumption
of discrimination arises and the burden shifts to the
defendants to offer a legitimate, non-discriminatory reason
for the adverse action. See Ptiasi, 184 F.3d at 716. If the
defendants fulfill this requirement, the burden shifts back
to Franzoni to demonstrate that the defendants’ proffered
reason is pretextual. See id.
Franzoni has established the first three factors: he was
over forty years of age, there were never any complaints
made about his performance, and he was terminated from
the Des Plaines facility. Franzoni, however, has failed to
set forth any evidence of similarly situated people not in
his protected class and therefore has failed to establish a
prima facie case of age discrimination.
Moreover, even if we were to assume that Franzoni had
set forth a prima facie case, his claim would fail because
he has failed to demonstrate pretext. We have previously
noted that pretext requires more than a showing that the
business decision was “mistaken, ill considered or foolish,”
and have held that so long as the employer “honestly be-
lieved” the reason given for the action, pretext has not

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No. 01-2853 7
been shown. Jordan v. Summers, 205 F.3d 337, 343 (7th
Cir. 2000); see also O’Conner v. DePaul Univ., 123 F.3d 665,
671 (7th Cir. 1997) (“On the issue of pretext, our only
concern is the honesty of the employer’s explanation . . . .”).
HSM’s stated reason for terminating Franzoni was that
Franzoni misrepresented his medical condition. Robinson
knew that Franzoni was not showing up for work, and
based on the videotape, he concluded that Franzoni was
misrepresenting his medical condition. Although Franzoni
vigorously disputes the circumstances surrounding his
medical leave and that he misrepresented his medical
condition, he does not address the relevant question—
whether Robinson “honestly believed” that Franzoni was
misrepresenting his medical condition. See Jordan, 205
F.3d at 343; see also Roberts v. Separators, Inc., 172 F.3d
448, 453 (7th Cir. 1999) (“Where an employer has honestly
described the motivation for its decision, that decision is
not pretext for discrimination just because the plaintiff
asserts the defendant’s beliefs were inaccurate.”). Franzoni
failed to present any evidence that Robinson did not
“honestly believe” he was justified in terminating Franzoni
for such reasons, and therefore, Franzoni’s age discrim-
ination claim fails. Id.
b. Retaliatory Discharge
Next, we address Franzoni’s claim that he was terminated
from his factory position at the Des Plaines facility in
retaliation for filing his EEOC complaint. In order to
establish a prima facie case of retaliatory discharge in
violation of the ADEA, Franzoni must show: (1) he engaged
in statutorily protected activity; (2) he suffered an adverse
employment action; and (3) there is a causal connection
between the protected activity and the adverse action. See
Horwitz v. Bd. of Ed. of Avoca Sch. Dist. No. 37, 260 F.3d
602, 612 (7th Cir. 2001). There is no dispute that Franzoni

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8 No. 01-2853
engaged in statutorily protected activity when he filed
his EEOC complaint, or that he suffered an adverse em-
ployment action when he was terminated. See id. To es-
tablish a causal connection, Franzoni needed to prove
that his EEOC charge and the current lawsuit “were not
wholly unrelated.” Id. at 613. We have previously held
that it is difficult to infer causation based solely upon the
timing of the relevant events. See id. “That is to say, we
have said that for there to exist a telling temporal se-
quence, the employer’s adverse action should follow fair-
ly soon after the employee’s protected expression.” Id.
In Horwitz, we held that a six-month gap in time alone
could not establish a causal connection. See id. In the
present case, as in Horwitz, Franzoni was terminated
from his job at the Des Plaines facility six months after
he filed his EEOC charges, and six months is too long
to establish a causal link without more. See id. As
Franzoni does not set forth any additional evidence demon-
strating a causal link between the charges and the deci-
sion to terminate him, he has failed to establish a prima
facie case of retaliatory discharge. See id. Moreover, as
we have already discussed, Franzoni was unable to estab-
lish pretext, and thus, his claim fails for this reason as well.
B. Job Elimination Claim
Franzoni next claims that IBA impermissibly eliminated
his promotional position due to his age. Defendants as-
sert that because their termination of Franzoni from the
Des Plaines facility was non-discriminatory, supra Part II.
A., there is no available remedy for Franzoni’s job elimina-
tion claim and thus his claim is nonactionable and moot.
Under the ADEA, a plaintiff may recover monetary dam-
ages in the form of back pay or liquidated damages for
willful conduct, see Comm’r v. Schleier, 515 U.S. 323, 336,
115 S. Ct. 2159, 132 L. Ed. 2d 294 (1995), and may also,
in certain circumstances, obtain equitable relief such as

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No. 01-2853 9
reinstatement, see 29 U.S.C. § 626(b), or front pay, see
Downes v. Volkswagen of Am., 41 F.3d 1132, 1141 (7th Cir.
1994). Plaintiffs may not, however, recover money dam-
ages for pain and suffering, nor may they obtain punitive
damages. See, e.g., Pfeiffer v. Essex Wire Corp., 682 F.2d
684, 687-88 (7th Cir. 1982). In the present case, the fact
that Franzoni was later permissibly terminated indi-
cates that reinstatement is not an appropriate remedy.
See McKennon v. Nashville Banner Pub. Co., 513 U.S.
352, 361-62, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995) (hold-
ing neither reinstatement nor front pay is an available
remedy once plaintiff would have been legitimately termi-
nated); see also O’Neal v. City of New Albany, 293 F.3d 998,
1004 (7th Cir. 2002). Further, Franzoni may not obtain
back pay. Franzoni did not suffer a decrease in salary or
benefits due to the elimination of his position at IBA
because he continued to receive the same salary and
benefits at the Des Plaines facility. Moreover, he received
full pay and benefits until the date he was legitimately
terminated from the Des Plaines position.
In Lankford v. City of Hobart, 73 F.3d 283, 288 (10th Cir.
1996), the court dismissed the plaintiff’s sexual discrim-
ination claim as moot when no remedy was available.
In Lankford, the plaintiff filed a Title VII claim that
was governed by the pre-1991 Civil Rights Act, which
restricted remedies to the traditional equitable remedies
of reinstatement, back pay, front pay, as well as declara-
tory and injunctive relief. See id. The court noted that
the plaintiff was still employed with the defendant and
thus reinstatement was not appropriate. See id. Further,
the plaintiff had made no claim for front pay or any type
of declaratory or injunctive relief. See id. The court also
noted that the plaintiff’s claim for back pay was not ap-
propriately before the court. See id. The court then stated:
[W]e need not address the merits of plaintiffs’ Title
VII claims because the lack of an appropriate remedy
moots their claims for relief. A claim is mooted when

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10 No. 01-2853
2 Franzoni has framed this claim as a retaliatory transfer as
well as a constructive discharge, although we are unclear how
Franzoni can allege a constructive discharge considering he never
resigned. See, e.g., Bragg v. Navistar Int’l Transp. Corp., 164 F.3d
373, 377 (7th Cir. 1998) (noting that constructive discharge exists
to provide protection to a “plaintiff who decides to quit rather than
wait around to be fired”).
the controversy no longer touches the legal relations
of parties having adverse legal interest in the outcome
of the case. The legal interest must be more than sim-
ply the satisfaction of a declaration that the person
was wronged. In this case, because no legal remedies
are available to plaintiffs a verdict in their favor would
do little more than provide them with emotional satis-
faction. Such satisfaction is not an appropriate remedy
under these circumstances.
Id. (citations omitted). In the present case, as in Lankford,
Franzoni lacks any appropriate remedy, rendering his
job elimination claim moot. See id.; see also Burns v. AAF-
McQuay, Inc., 1997 WL 820958 (W.D. Va. Dec. 23, 1997),
aff’d, 166 F.3d 292 (4th Cir. 1999) (upholding dismissal
of ADEA claim where plaintiff was not entitled to either
legal or equitable relief and was not entitled to reinstate-
ment because she had left previous position); Cox v.
Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994)
(applying pre-1991 Civil Rights Act law and “conclud[ing]
that a legitimate termination of employment moots a
plaintiff’s § 1983 claim for declaratory and/or injunctive
relief”); Hampton v. IRS, 913 F.2d 180, 182 (5th Cir. 1990)
(dismissing claim as moot where plaintiff terminated for
legitimate reasons).
C. “Transfer” from IBA to the Des Plaines Position
Franzoni’s final contention is rather vague, 2 but he
focuses on his “transfer” from his position at IBA promot-

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No. 01-2853 11
ing the Franzoni line to the Des Plaines position and
claims that the transfer was retaliatory for his filing of
an EEOC charge. However, as with his termination claim,
this claim is also moot. As discussed, Franzoni would have
no right to back pay because he was paid the same at
both positions. Moreover, neither reinstatement nor front
pay is appropriate because Franzoni was legitimately ter-
minated. See McKennon, 513 U.S. at 361-62. First, as
discussed above, Franzoni cannot be reinstated to the Des
Plaines facility because he was legitimately terminated
from that position for falsifying his medical condition.
See id. Similarly, reinstatement to his former position at
IBA is not an available remedy because as Franzoni ac-
knowledges, the IBA position was eliminated several
months before he was terminated. Thus, reinstatement
to the IBA position is not an option because it did not ex-
ist at the time Franzoni was legitimately terminated, and
therefore, Franzoni has no available remedy, rending this
claim moot as well.
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-8-02

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