Jack C. Swenson v. Salient Corporation

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 12, 2014*
Decided March 12, 2014
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 13-3013
JACK C. SWENSON,
Plaintiff-Appellant,
v.
SALIENT CORPORATION, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 11 C 4295
Ronald A. Guzmán,
Judge.
O R D E R
Jack Swenson sued his former employer, Salient Corporation, and several of its
executives, contending that by firing him they committed age discrimination, see Age
Discrimination in Employment Act, 29 U.S.C. § 623(a), and violated state law (breach of
contract and unlawful termination). The district court granted summary judgment to
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
After examining the parties’ briefs and the record, we have concluded that oral*
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).

-- 1 of 5 --

No. 13-3013 Page 2
the defendants. Because no evidence links age bias to Swenson’s discharge, and the
record establishes that he was an at-will employee under state law, we affirm.
Salient, a consulting company, hired Swenson as Senior Vice-President of
Healthcare in 2010 but terminated his employment less than two months later. His
employment began after he discussed the position with Guy Amisano, the company’s
chief executive, and Bill Carpenter, its chief operating officer. That discussion led to a
written offer from Christine Cavanaugh, the corporate controller, dated June 16, 2010.
The offer specified that Salient would require him to work on a business plan for the
company’s new healthcare initiative during his first 60 days on the job. The offer also
stated that it “does not constitute an employee contract (i.e., either one of us can
terminate employment at will, with or without cause). Further, this offer of employment
supersedes any prior or subsequent oral representation that might be made.” Swenson
submitted a counteroffer, asking Carpenter, among other things, to remove the at-will
language. Salient issued a new offer on June 17 that accepted some of Swenson’s
requests but kept, verbatim, the paragraph on at-will employment. Swenson accepted
that offer with his signature.
When he began working, Swenson acknowledged in writing that he received the
company’s handbook, which sets forth Salient’s at-will employment policy. The second
paragraph of his acknowledgment declares: “I understand that no statement contained
in the Employment Handbook creates any guarantee of continued employment or
creates any obligation, contractual or otherwise, on the part of Salient Corporation. I
have entered into my employment relationship with Salient Corporation voluntarily,
and I acknowledge that there is no specified length of employment.”
Swenson’s first day with Salient was June 28, giving him 60 days from then (until
August 27) to produce a business plan. The day before Swenson was scheduled to leave
for a pre-approved cruise vacation on August 5, Carpenter asked Swenson for a draft of
the plan, as they had discussed previously. Carpenter did not hear from Swenson until
he returned from vacation on August 13, and, again, asked for a draft of the plan. When
Carpenter had not received a draft by the following Monday, with Amisano’s approval
he fired Swenson for insubordination and lack of performance.
In this suit, Swenson maintains two principal claims. His first claim is that Salient
fired him because of his age. According to his deposition testimony, on his first day of
work, Carpenter demanded that Swenson tell him his age (which was 56). When
Swenson refused, Carpenter became increasingly agitated. Swenson also testified that

-- 2 of 5 --

No. 13-3013 Page 3
on his third day of work Amisano, too, demanded his age several times and became
angry when Swenson again did not oblige. The company, he says, also required that he
participate in activities that prevented him from completing the business plan. Swenson
views the age inquiries and extra activities as evidence of age bias. His second claim
challenges his discharge under state law. He argues that his June 17 offer plus other
communications establish an employment contract that Salient breached by firing him.
The district court granted summary judgment for the defendants. It assumed that
the executives had asked Swenson about his age but concluded that neither those
remarks, nor his workload, implied that he was fired because of his age. The court also
concluded that, based on the June 17 letter and company’s employee handbook, he was
an at-will employee; therefore Swenson could not prevail under state law. (Earlier in the
case, the district court had also dismissed a due-process claim; Swenson does not
challenge that dismissal, so we say nothing further about it.)
On appeal Swenson first challenges the district court’s ruling that no evidence
supported his claim of age discrimination. He again cites to Amisano and Carpenter’s
remarks about his age, which, he says, were made “around the same time” as his
discharge. He also repeats his contention that the extra “job duties and tasks that
required his constant attention” prevented him from focusing on the business plan and
were added because of his age. He proceeds under the direct method of proof, under
which a plaintiff claiming age discrimination may rely on circumstantial evidence of
suspicious timing, ambiguous statements, and “other bits and pieces” from which an
inference of discriminatory intent might be drawn. Brown v. Advocate S. Suburban Hosp.,
700 F.3d 1101, 1105 (7th Cir. 2012) (internal citation and quotation marks omitted);
see Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1114–15 (7th Cir. 2009); Cerutti v. BASF
Corp., 349 F.3d 1055, 1061 (7th Cir. 2003).
Swenson’s evidence does not support a reasonable inference that Salient
discriminated against him based on his age. We begin with his assertion that Amisano
and Carpenter, both decisionmakers, demanded that Swenson divulge his age. We may
assume that they asked for his age (though they deny it) and that their inquiry reflected
age bias (although neutral reasons for the inquiry are possible). To be actionable under
the direct method, however, a decisionmaker’s discriminatory remarks must be both
contemporaneous to the adverse employment action and refer to that adverse action.
See Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 605 (7th Cir. 2012); Mach v. Will Cnty.
Sheriff, 580 F.3d 495, 499 (7th Cir. 2009); Hemsworth, II v. Quotesmith.com, Inc., 476 F.3d
487, 491 (7th Cir. 2007). Amisano and Carpenter’s remarks do not meet either

-- 3 of 5 --

No. 13-3013 Page 4
requirement. Swenson testified that they questioned him, not “around the same time”
as his discharge, but during his first three days of work. Because the comments
preceded his discharge by nearly two months, they were not contemporaneous to the
firing. See Markel v. Bd. of Regents of Univ. of Wis. Sys., 276 F.3d 906, 910–11 (7th Cir. 2002)
(finding supervisors’ statements made “nearly two months” before firing were not
contemporaneous to discharge and thus not evidence of discrimination). Furthermore,
when they questioned him at the onset of his employment, they did not refer to or
threaten any adverse action. And when they fired him after he did not produce a draft
business plan, they did not refer to his refusal to divulge his age. On this record, then, a
reasonable jury could not infer an age-discriminatory discharge from earlier, limited
requests for his age.
Swenson’s evidence about his workload also falls short because he has not
specified what the extra assignments entailed. Without some detail about the work, let
alone a reason to connect it to Swenson’s age, a reasonable jury could not find that
Salient, by imposing those tasks, acted with discriminatory intent. See Lucas v. Chi.
Trans. Auth., 367 F.3d 714, 726 (7th Cir. 2004) (refusing to consider plaintiff’s assertions
that African–Americans were treated “more harshly” in that they were given tougher
assignments where plaintiff offered no specifics to support his assertions).
Swenson next contests the district court’s rejection of his state-law claims, but the
grant of summary judgment was correct because he was an at-will employee who could
be fired for any non-forbidden reason, or no reason. See Hunt v. DaVita, Inc., 680 F.3d
775, 778 (7th Cir. 2012); Hartlein v. Ill. Power Co., 601 N.E.2d 720, 728 (Ill. 1992). In
Illinois, employment that is not for a fixed term is presumed to be at will and terminable
by any party at any time. A.T.N., Inc. v. McAirlaid’s Vliesstoffe GMBG & Co., 557 F.3d 483,
486 (7th Cir. 2009); McInerney v. Charter Golf, Inc., 680 N.E.2d 1347, 1349 (Ill. 1997). That
describes Swenson’s arrangement. The June 17 offer that Swenson accepted provides
that “either one of us can terminate employment at will, with or without cause.”
Swenson also agreed that “this offer of employment supersedes any prior or subsequent
oral representation that might be made.” What’s more, Salient’s employee handbook,
which Swenson also signed, repeats that his employment at the company was at will.
Swenson argues that four documents refute that he was employed at will.
See Janda v. U.S. Cellular Corp., 961 N.E.2d 425, 437–38 (Ill. App. Ct. 2011). He points to
two restrictive covenants that he signed, one 3-year noncompete agreement, and one
10-year nondisclosure agreement. He believes that these are irreconcilable with at-will
employment. Swenson also points to the employee handbook and job application. He

-- 4 of 5 --

No. 13-3013 Page 5
argues that both contemplate that Salient’s president can execute employment contracts
that override an at-will presumption. Because he reported to the president, Swenson
concludes, he must not have been employed at will.
None of these documents suggests that Swenson was not employed at will.
Illinois law recognizes that an employer’s need for restrictive covenants like Swenson’s
is consistent with at-will employment. See Abel v. Fox, 654 N.E.2d 591, 597 (Ill. App. Ct.
1995); see also Medtronic, Inc. v. Benda, 689 F.2d 645, 654 & n.4 (7th Cir. 1982) (recognizing
coexistence of at-will employment and restrictive covenants). And although Amisano
has the power to execute contracts that may override the presumption of an at-will
employment relationship, Swenson furnished no evidence that he did. To the contrary,
as we have already observed, the offer letter that Swenson signed stated that the
relationship was at will. In any case, that letter was signed by Cavanaugh, the corporate
controller, not Amisano.
Lastly, we reject Swenson’s contention that the handbook’s discussion of at-will
employment is ineffective because the policy is buried inside the manual. Although the
discussion is toward the end of the handbook, at-will employment is defined in the first
sentence of the section on dismissals. Moreover, the second paragraph of the
acknowledgment form that he signed repeats his understanding that the handbook
creates no “guarantee of continued employment.” This prominence is sufficient to
create at-will employment status. See Habighurst v. Edlong Corp., 568 N.E.2d 226, 228–30
(Ill. App. Ct. 1991) (approving disclaimer on signed, last page of handbook).
Accordingly, we AFFIRM the judgment of the district court.

-- 5 of 5 --