Opinion
No. 99 C 3115
January 30, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff, Kenneth W. Rusk, commenced an action against defendant, Seven Worldwide, Inc., alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, Count I, and a common law breach of oral contract claim, Count II. Before this Court is the defendant's Motion for Summary Judgment of Count I under Federal Rule of Civil Procedure 56(c).
Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admission on file, together with affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). All the evidence and the reasonable inferences that may be drawn from the evidence is viewed in the light most favorable to the nonmovant. Miller v. American Family Mutual Insurance Co., 203 F.3d 997, 1003 (7th Cir. 2000). However, the nonmovant must still come forward with evidence establishing the elements of his claim on which he bears the burden of proof at trial. As such, he must establish specific facts that show there is a genuine issue for trial. Miller, 203 F.3d at 2003.
In 1959, plaintiff began employment as a messenger with Jahn Ollie, a predecessor of the defendant. (Plaint's 56.1(a)(3) Supp. Statement ¶ 1). In 1988, Wace Group PLC acquired Jahn Ollie. At this time plaintiff, was a Sales Manager. Subsequently, in 1988, plaintiff was promoted to Executive Vice President of Sales and, in 1989, to General Manger of the 817 Washington Street facility. ( Id., at ¶ 3). Prior to the acquisition by Wace (changing its name to Seven Worldwide in 1998), many of the companies operated independently and competed against each other instead of working as part of the same company. (Def.'s 56.1(a)(3) Statement ¶ 7). After the acquisition, defendant attempted to integrate all of its separate companies and eliminate duplication of efforts. In 1992, the plaintiff told John Hanson (Hanson). Vice President and Chief Financial Officer, that he "wasn't sure" the new business strategy "was a good idea". ( Id., at ¶ 8). In 1996, plaintiff was removed as the General Manager of the 817 Washington facility and was offered a position in the Los Angeles area. Instead, plaintiff requested and became the Southern Group Sales Director. ( Id., at ¶ 11). In the summer or fall of 1996, defendant announced that the Memphis facility was placed on the market for sale. ( Id., at ¶ 19; Plaint,'s 56.1(a)(3) Supp. Statement ¶ 6). In or around December 1996, the Memphis facility was taken off the market because the facility was no longer profitable. (Def.'s 56.1(a)(3) Statement ¶ 20).
In 1997, Derek Ashley (Ashley), the President and Chief Executive Officer asked plaintiff to become the General Manager of the Memphis facility. Plaintiff became the manager of the Memphis facility on September 1, 1997. (Plaint's 56.1(a)(3) Supp. Statement ¶¶ 17, 19). Plaintiff told Ashley that he believed it would take six months to one year to improve the Memphis facility. (Def.'s 56.1(a)(3) Statement ¶ 14). While the plaintiff was manager, a quality-of-work problem that required rerunning of jobs (defendant is in the press operations and related business industry) was not resolved; and management believed that the wrong type of sales was being brought into the Memphis facility. (John Hanson's Dep. pp. 25-33). Hanson did not believe that plaintiff was able to manage the operations at the Memphis facility based on the operation itself, the performance, quality, timeliness, and customer responsiveness and because the sales growth did not improve to a satisfactory level over a period of time. ( Id., at p. 25). Hanson believed the morale of the employees at the Memphis facility was affected because employees commented to him when he visited the facility indicating they were questioning where the business was heading, and the business was not being defined. ( Id., at p. 37). During plaintiff's tenure at the Memphis facility, the facility did not make a profit (Plaintiff's Dep. p. 57); and the quality of product deteriorated irregardless of plaintiffs promises that things would "turn around" (Derek Ashley Dep. p. 68).
In February or March 1998, defendant placed the Memphis facility back on the market for sale. (Def's 56.1(a)(3) Statement ¶ 24). In October of 1998, defendant sold the Memphis facility to Graphic Source. ( Id., at ¶ 25). In early November, 1998, Mark Rutter (Rutter), the Midwest Sales Director of defendant, and plaintiff had dinner together and discussed plaintiffs future with the defendant company. Plaintiff indicated that he wanted to be the Midwest Group Sales Director, and Rutter informed him that the company no longer had a Midwest Sales Director. (Mark Rutter's Dep. p. 78). Rutter informed plaintiff that he needed someone to do business development, and plaintiff indicated that he would be interested in such a position but that he would not make "cold calls". Rutter informed plaintiff there was no position like that in the company. ( Id., at p. 79).
In conjunction with the sale, defendant terminated 67 of the 69 employees at the Memphis facility, including the plaintiff, then 55 years of age. (Def's 56.1(a)(3) Statement ¶ 27). The buyer hired 44 of defendant's previous employees as its own employees; the other 23 employees (including 2 part-time employees) were not offered positions. The 22 full-time employees not hired by the buyer included 6 people, including plaintiff, over the age of 40 and 15 individuals under the age of 40. Two employees, Cal Steinhoff (date of birth 12/17/61) and Marlene Griggs (date of birth 9/19/41), were transferred to a different facility of the defendant company. ( Id., at ¶ 26). Steinhoff was transferred to the Chicago area, and Griggs was transferred to the Los Angeles area. (Plaint.'s 56.1(a)(3) Supp. Statement ¶ 28). Steinhoff, a Sales Manager who reported to the plaintiff, had been promised by plaintiff that he would be transferred to the Chicago facility if the Memphis facility was sold upon Steinhoff's original transfer to the Memphis facility. (Def.'s 56.1(a)(3) Statement ¶¶ 39, 40). A Sales Manager position at the 225 West Superior facility may have been open at the time of plaintiffs termination. ( Id., at 82-83). Rutter was not aware that the position was open at the time the plaintiff was terminated and would not have considered the plaintiff for the position because he did not believe the plaintiff was qualified for that position because the plaintiff did not have the skill or style needed to be successful at the 225 West Superior facility. ( Id., pp. 85-86). Rutter believed that Patricia Frawley (Frawley), who became the manager of the 225 West Superior facility, was more qualified for the position because of her approach with clients and her relationship with the clients at the facility, including a relationship with the largest client of the facility. (Id., at pp. 87-88). Frawley was 37 years-old at the time of her promotion to Sales Manager of the 225 West Superior facility and had no experience in sales management; she primarily worked with one client, the largest client of the facility. (Plaint's 56.1(a)(3) Supp. Statement ¶¶ 39, 40). Plaintiff was terminated by defendant company effective November 21, 1998, "because his position was eliminated by the sale of the Memphis facility and no other positions were open in Chicago for a person with Plaintiff's background." (Id., at ¶ 61).
The ADEA makes it unlawful to "discharge any individual or otherwise discriminate against any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). To succeed on a claim under the ADEA, the plaintiff must show that his age was a determining factor in the employer's decision to terminate his employment. Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 393 (7th Cir. 1998) ( Adreani). A claimant may prove age discrimination by presenting either direct evidence of discrimination or indirect evidence through the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Adreani, 154 F.3d at 393. Plaintiff did not choose to pursue his claim through the direct method; thus, the focus is on the McDonnell Douglas method.
Plaintiff must establish a prima facie case by the preponderance of the evidence. Jackson v. E.J Brach Corp., 176 F.3d 971, 982 (7th Cir. 1999). A prima facie case is established by showing: (1) plaintiff was in a protected class (40 years of age or older ( 29 U.S.C. § 631(a)); (2) plaintiff performed his job duties such that he was meeting his employer's legitimate expectations or was qualified for the job for which he applied; (3) despite his performance, plaintiff was discharged or not hired; and (4) similarly situated younger employees were treated more favorably than plaintiff Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995). If the plaintiff establishes a prima facie case, a rebuttable presumption is created; and the employer must come forward with evidence of a legitimate, nondiscriminatory reason for its actions. If the employer meets this requirement, the burden shifts back to the plaintiff to demonstrate, again, by a preponderance of the evidence, that reasons proffered by the employer are actually a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; Adreani, 154 F.3d at 394.
In the present case, the plaintiff alleges that the defendant discriminated against him by terminating his employment and refusing to transfer him to a different position.
A. Elements to Establish a Prima Facie Case
(1) Protected Class and (3) Discharge or Failure to Hire
The plaintiff has shown that, at 55 years of age, he was in the protected age group and that he was discharged and was not hired (transferred) to a different position in the company.
(2) Meeting Employer's Legitimate Expectations and Qualified for the Job Applied For
The inquiry of a plaintiffs abilities focuses on the employee's performance at the time of termination. See Hong v. Children Mem. Hosp., 993 F.2d 1257, 1262 (7th Cir. 1993). Generally, self serving statements by a plaintiff about his abilities are insufficient to contradict an employer's negative assessment of that person's abilities. Dey v. Colt Const. Development Co., 28 F.3d 1446, 1460 (7th Cir. 1994); Vance v. Qualex, Inc. 94 F. Supp.2d 957, 965 (N.D.Ind. 2000).
The plaintiff testified in his deposition that he believed he was meeting defendant's legitimate expectations while General Manager of the Memphis facility. The plaintiff admits that the Memphis facility did not make a profit during his tenure but attributes such to problems that needed additional time to correct. (Plaint.'s Dep. p. 57). Management testified in their deposition that plaintiff was not meeting its expectations as illustrated by the performance of the Memphis facility, quality problems at the facility, morale of employees, and plaintiffs failure to correct problems after several reassurances that things would improve. Management also testified that it did not believe that the plaintiff was qualified for a management position at the 225 West Superior Facility because the plaintiff did not have the skill or style needed at that facility. (Mark Rutter's Dep. pp. 78-88). These undisputed facts demonstrate that the plaintiff did not meet the defendant's legitimate expectations of a general manger, and he cannot establish a prima facie case.
Furthermore, plaintiff has failed to demonstrate material facts demonstrating he was qualified for a transfer to another position. An employer has no duty to transfer an employee to another position when it reduces its workforce. Sauzek v. Exxon Coal Inc., 202 F.3d 913, 919 (7th Cir. 2000) ( Sauzek). To demonstrate that an employer's failure to transfer was discriminatory, the plaintiff must do more than show a general interest in obtaining some job; instead, he must show that he was qualified for and applied for specific jobs that were available during the reduction in force. Sauzek, 202 F.3d at 919.
Here, plaintiff has demonstrated that he spoke generally to management about a transfer, but plaintiff has not shown he applied for any management positions that may have been available. Furthermore, plaintiff failed to establish that he was qualified for any management positions that he believes to which he should have been transferred. The plaintiff did establish that a management position at the 225 West Superior facility was open at the time he was terminated; however, he has provided no evidence to refute defendant's management's testimony that the plaintiff was not qualified for the management position at that facility.
(4) Similarly Situated Employees Treated More Favorably
In determining whether two employees are similarly situated, a court must look at all relevant factors, the number of which depends on the context of the case. See Spath v. Hayes Wheels Int'l-Ind, Inc., 211 F.3d 392, 396-97 (7th Cir. 2000).
The plaintiff argues that Steinhoff is a younger similarly situated employee who was treated more favorably. He avers that Steinhoff is the only similarly situated employee because both he and Steinhoff were in management positions and both had transferred to the Memphis facility from a different facility. He discounts Griggs as a similarly situated employee because, while she was the only other employee that transferred to the Memphis facility from another facility, she was not in a management position. The plaintiffs argument is contradicted by the undisputed facts that Steinhoff, while in a management position, was not at the same level of management as the plaintiff and was subordinate to the plaintiff. More importantly, Steinhoff was promised, in writing, at the time of his transfer to the Memphis facility, that he would he transferred to the Chicago facility if the Memphis facility was sold; plaintiff did not have any similar agreement with defendant. Steinhoff's transfer does not demonstrate a younger similarly situated employee was treated more favorably than the plaintiff. In addition, the transfer of Griggs by defendant does not demonstrate a younger similarly situated employee received more favorable treatment because she was older than plaintiff at the time of her transfer.
B. Pretext
The plaintiff has failed to establish the necessary elements to support a prima facie case. Assuming argumendo, that plaintiff could establish a prima facie case, he fails to demonstrate that the defendant's reason for terminating his employment and not transferring him to a different position was a pretext for discrimination.
If a plaintiff establishes a prima fade case, a rebuttable presumption is created; and the employer must come forward with evidence of a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. Here, the defendant has come forward with a legitimate, nondiscriminatory reason for its actions — the Memphis facility was closing, and the defendant did not have a position available that defendant was qualified to fill.
The burden now shifts back to plaintiff to demonstrate, again, by a preponderance of the evidence, that reasons proffered by the employer are actually a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; Jackson, 176 F.3d at 982. A plaintiff can establish pretext by showing that the employer's explanation is unworthy of credence or that a discriminatory reason more likely motivated the employer. Debs v. Northeastern Illinois Univ., 153 F.3d 390, 395 (7th Cir. 1998) ( Debs). Pretext in this context does not mean a mistake; rather, it means "a lie, specifically a phony reason for some action." Russel v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). An honest belief in the nondiscriminatory reason offered by the decision-maker will be sufficient even if the reasons are foolish, trivial, or even baseless. Debs, 153 F.3d at 396.
The plaintiff argues he produced sufficient evidence to show that defendant's stated reason for discharging him was a pretext for discrimination. Defendant indicated that the plaintiff was terminated because his position was eliminated by the closure of the Memphis facility, and no other positions were open for a person with plaintiffs background.
First the plaintiff argues management lied to him when they told him that no position was open in the Chicago area when they knew that a position at the 225 West Superior facility was open and that he was qualified for that position. The plaintiff misstates the record in making his argument. Management informed plaintiff that the Midwest Group Sales Director position was not available. In addition, management testified that plaintiff was not qualified for the management position at the 225 West Superior facility. Plaintiff attempts to show he was better qualified than Frawley, who was hired for the position at 225 West Superior facility, because he had more experience. The plaintiffs argument ignores the undisputed facts that Frawley had experience in the Chicago area, her main client was that facility's largest client, and management believed she was better qualified for the Chicago area.
The plaintiff also argues Rutter's testimony that the plaintiff was not an appropriate candidate for the 225 West Superior facility because the plaintiffs style was directed at "experienced" male clients and not "inexperienced" female clients, is direct evidence that Rutter refused to hire him because of his age. The plaintiff provides no support for his argument that the terms "experienced" and "inexperienced" are direct evidence of discrimination, and such argument contradicts the plaintiffs testimony that Rutter, who is older than the plaintiff, never made any statements indicating that he was biased against employees because of their age. Accordingly, defendant's Motion for Summary Judgment of Count I of plaintiffs complaint is granted.
Plaintiffs remaining count is a state law claim of breach of contract. Plaintiffs discrimination claim that provided this Court with jurisdiction is no longer pending; therefore, the Court dismisses plaintiffs remaining state law claim for lack of jurisdiction. See Fed.R.Civ.Proc. 12(h)(3).