Opinion
No. 98 C 50351, No. 98 C 50352
December 12, 2000
MEMORANDUM OPINION AND ORDER I. INTRODUCTION
Plaintiff in Case No. 98 C 50351, Jerry Davis, has filed a one-count complaint against defendant, Rockford Spring Company ("Rockford Spring"), alleging that Rockford Spring terminated him because of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") Plaintiff in Case No. 98 C 50352, Charles A. Davis, Sr., has filed a two-count complaint against the same defendant, Rockford Spring, and alleges a similar claim under the ADEA, as well as a claim off wrongful termination because of disability under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Rockford Spring has filed motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in both cases. The court has jurisdiction based on 28 U.S.C. § 1331, 29 U.S.C. § 626 (c) (ADEA), and 42 U.S.C. § 12117(a), 2000e-5(f)(3) (ADA). Venue is proper as the alleged events occurred in this district and division. See 28 U.S.C. § 1391(b).
Because these cases are nearly identical, both factually and legally, the court has consolidated the two motions for purposes of this order. For the sake of convenience and clarity, the court will refer to Charles A. Davis, Sr., as "C. Davis Sr.," Jerry Davis as "J. Davis," and Charles A. Davis, Jr. (who will be introduced below), as "C. Davis. Jr."
II. FACTS
In reciting the facts of this case, the court will refer to the parties' statements of fact filed in accordance with Local Rule 56.1. These will be designated with the appropriate plaintiff's name followed by "LR 56.1(a)" for Rockford Spring's statements and "LR 56.1(b)" for plaintiffs' response statements.
A. Plaintiffs' termination. from Rockford Spring
Rockford Spring is a manufacturer of precision springs and wire forms. (J. Davis LR 56.1(a) ¶ 9) J. Davis and C. Davis Sr. are brothers who both worked for Rockford Spring for a number of years before being terminated in 1998 — J. Davis since 1974 and C. Davis Sr. since 1961. (Id. ¶¶ 11, 20; C. Davis Sr. LR 56.1(a) ¶ 30) Their positions at Rockford Spring were "four slide operator" and "coil setup operator," respectively. (J. Davis LR 56.1(a) ¶ 11; C. Davis Sr. LR 56.1(a) ¶ 32) John Mink, Rockford Spring's presidents terminated both plaintiffs on March 13, 1998. (J. Davis LR 56.1(a) ¶¶ 20, 28; C. Davis Sr. LR 56.1(a) ¶¶ 45, 53) At that time, J. Davis was forty-six years old and C. Davis Sr. was fifty-five. (J. Davis LR 56.1(a) ¶ 6; C. Davis Sr. LR 56.1(a) ¶ 6)
The events leading up to plaintiffs' terminations began in 1989, when C. Davis Sr.'s son (and J. Davis' nephew), Charles Davis, Jr., formed his own business called Riverside Spring Company ("Riverside Spring"). (J. Davis LR 56.1(b) ¶ 70; Def. Exh. A, C. Davis Sr. dep., p. 70) Like Rockford Spring, Riverside Spring also manufactures springs and wire forms, though on a much smaller scale. (J. Davis LR 56.1(a) ¶ 19; J. Davis LR 56.1(b) ¶¶ 19, 73; Def. Exh. A, C. Davis Sr. dep., pp. 74-76, 89; Def. Exh. B, Mink dep., pp. 16-17)
Mink knew about Riverside Spring since 1994, the nature of its business, and, to a certain extent, plaintiffs' involvement with it. (J. Davis LR 56.1(b) ¶ 63; C. Davis Sr. LR 56.1(b) ¶ 110) Based on a conversation he had with C. Davis Sr. in 1994, Mink was aware that C. Davis Sr. gave C. Davis Jr. a loan to start up Riverside Spring, as well as assisted and provided advice to his son when not working at Rockford Spring. (C. Davis Sr. LR 56.1(a) ¶ 43; C. Davis Sr. LR 56.1(b) ¶ 110; Def. Exh. A, C. Davis Sr. dep., pp. 72-74, 95-96; Def. Exh. B, Mink dep., pp. 16-18) J. Davis similarly told Mink in 1994 that he spent a little time in the evenings helping out his nephew at Riverside Spring and working with him on particular jobs. (J. Davis LR 56.1(a) ¶ 18; J. Davis LR 56.1(b) ¶ 63; Def. Exh. A, J. Davis dep., pp. 41-43, 73-75; Def. Exh. B, Mink dep., p. 16) As J. Davis recalled, Mink's reply to this was, "I don't care what you do on your time. What you do on my time I care about." (J. Davis LR 56.1(b) ¶ 72)
Approximately four years later, on March 13, 1998, Mink called both plaintiffs into his office to discuss with them again the nature of their association with Riverside Spring. (J. Davis LR 56.1(a) ¶ 41; C. Davis Sr. LR 56.1(a) ¶ 16) What prompted this meeting, according to Mink, was a brochure he had come across the day before. (J. Davis LR 56.1(a) ¶ 21) The brochure was from Riverside Spring and pictured J. Davis cranking a machine handle. (Id. ¶ 25) It also featured springs that Mink believed, based on their distinctive features, had been manufactured by Rockford Spring. (Id. ¶ 23) This led Mink to obtain a copy of a "Dun Bradstreet" report ("DB report") about Riverside Spring. (Id. ¶ 26) The DB report listed both plaintiffs as officers, directors, and two of the four shareholders of Riverside Spring since 1990. (Id.; C. Davis Sr. LR 56.1(a) ¶ 50) Plaintiffs confirmed this information during the March 13 meeting (J. Davis LR 56.1(a) ¶ 17; C. Davis Sr. LR 56.1(a) ¶ 42) and J. Davis also admitted to taking springs out of Rockford Spring's scrap barrel. (J. Davis LR 56.1(a) ¶ 24)
C. Davis Sr. objects to the DB report as hearsay. If admitted at trial, however, the report would not be admitted to prove the truth of the matter asserted (i.e, that plaintiffs were in fact officers and shareholders) but instead to show what effect it had on Mink's state of mind. See United States v. Hanson, 994 F.2d 403, 406 (7th Cir. 1993).
Although plaintiffs' deposition testimony was that nothing in their relationship with Riverside Spring changed between 1994 and 1998 (J. Davis LR 56.1(b) ¶ 74; Def. Exh. A, C. Davis Sr. dep., p. 73), neither could say whether Mink knew about their status as Riverside Spring directors and officers back in 1994. (Def. Exh. A, J. Davis dep., p. 41; Def. Exh. A, C. Davis Sr. dep., pp. 74, 91-93) C. Davis Sr. did not remember telling Mink that information in 1994 (Def. Exh. A, C. Davis Sr. dep., pp. 91-92) and both plaintiffs have no idea when Mink came into possession of the brochure and DB report. (J. Davis LR 56.1(a) ¶ 22; Def. Exh. A, J. Davis dep., pp. 41-43; Def. Exh. A, C. Davis Sr. dep., pp. 74, 91-93, 95-96) On the other hand, Mink himself stated he did not know before March 13, 1998, that plaintiffs were owners of Riverside Spring and did not obtain the brochure and DB report until March 12, 1998. (Def. Exh. B, Mink dep., pp. 52, 62-67)
In any event, Mink ultimately decided that plaintiffs should be terminated for violating Rockford Spring's conflict of interest policy contained in its employee handbook. (J. Davis LR 56.1(a) ¶¶ 14, 20, 28, 31; C. Davis Sr. LR 56.1(a) ¶¶ 39, 45, 53, 57) Mink believed that a conflict of interest existed once he found out that J. Davis and C. Davis Sr. were owners and shareholders of a company making the same product he made and using product in its sales literature that appeared to be very similar, if not exactly the same, as his own product. (J. Davis LR 56.1(a) ¶ 30; C. Davis Sr. LR 56.1(a) ¶ 56; Def. Exh. B, Mink dep., pp. 30-31, 34) Although both plaintiffs had received periodic merit-based raises and were never disciplined throughout their long tenure at Rockford Spring, and even offered to resign their "paper titles" at Riverside Spring (J. Davis LR 56.1(b) ¶¶ 56-57, 59-60; C. Davis Sr. LR 56.1(a)¶¶ 103-104, 106-107), Mink terminated them on the spot on March, 13, 1998. (J. Davis LR 56.1(a) ¶ 28; C. Davis Sr. LR 56.1(a) ¶ 53) Afterwards, their job responsibilities were assumed by other Rockford Spring employees who were in their mid-twenties at the time. (J. Davis LR 56.1(b) ¶ 62; C. Davis Sr. LR 56.1(b) ¶ 109)
B. C. Davis Sr.'s Disabilities
In 1992, C. Davis Sr. suffered two heart attacks. (C. Davis Sr. LR 56.1(a) ¶¶ 9, 10) Around that same time, he was also diagnosed with diabetes and high blood pressure. (Id. ¶¶ 8, 12, 18) Mink was aware of C. Davis Sr.'s medical problems because he often discussed them with C. Davis Sr. and visited C. Davis Sr. in the hospital following his heart attacks. (C. Davis Sr. LR 56.1(b) ¶ 100) C. Davis Sr. claims that, at the time of his termination in March 1998, his heart condition and diabetes limited him from walking further than "a city block or two on a real good day" and required him to elevate his legs immediately because they routinely swelled. (Id. ¶¶ 120-21)
These facts concerning the physical effects of C. Davis Sr.'s medical conditions come from his own affidavit, which he filed with his LR 56.1(b) statement. Rockford Spring paints this affidavit as an attempt to "explain away concessions" C. Davis Sr. made in his deposition and urges the court to disregard it as directly contradicting his deposition testimony. See Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995). Although a close call, the court believes C. Davis Sr.'s affidavit does not directly contradict his deposition testimony, but is instead a legitimate way of clarifying or expanding upon his rather incomplete deposition testimony. See Shepherd v. Slater Steels Corp., 168 F.3d 998, 1007 (7th Cir. 1999).
III. ANALYSIS
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; Michas v. Health Cost Controls of Ill., 209 F.3d 687. 692 (7th Cir. 2000). To determine whether a genuine issue of material fact exists, the court views the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See Michas, 209 F.3d at 692. A genuine issue for trial exists only when a reasonable jury could find for the nonmoving party based on the record as a whole. See id. However, the mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment. See id.As plaintiffs have put forth no direct evidence of
disability or age discrimination, the court will evaluate their claims under the burden-shifting method set out in McDonnell Douglas corp. v. Green, 411 U.S. 792 (1973). Under this framework, plaintiffs bear the initial burden of making out prima facie cases of unlawful discrimination. See Robin v. Epso Eng'g Corp., 200 F.3d 1081, 1090 (7th Cir. 2000). This requires them to show: (1) they are within the protected class (over forty under the ADEA or disabled within the meaning of the ADA); (2) they were performing their job to Rockford Spring's legitimate expectations; (3) they were discharged; and (4) under the ADEA, Rockford Spring hired or replaced them with someone who was substantially younger; under the ADA, the circumstances surrounding C. Davis Sr.'s termination indicate it is more likely than not that his disability was the reason for his discharge. See id. Spath v. Hayes Wheels Int'l-Indiana, 211 F.3d 392, 396 (7th Cir. 2000); Johnson v. Zema Sys. Corp., 170 F.3d 734, 746 (7th Cir. 1999). If plaintiffs are able to establish their prima facie cases, then the burden shifts to Rockford Spring to articulate a legitimate, nondiscriminatory reason for their terminations. See Robin, 200 F.3d at 1088. Once it has done so, plaintiffs have the opportunity to prove by a preponderance of the evidence that the reason stated by Rockford Spring was not its true reason, but merely a pretext for discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, ___ 120 S.Ct. 2097, 2106 (2000);Robin, 200 F.3d at 1088.
A. Prima Facie Cases
With respect to plaintiffs' prima facie cases, what is not at issue is prong one in their ADEA claims (both plaintiffs were over forty years old), prong three in their ADEA and ADA claims (both plaintiffs were discharged), and prong four in their ADEA claims (plaintiffs' job duties were assumed by other employees who were in their mid-twenties). The court addresses the remaining issues in turn.
1. Whether plaintiffs were meeting Rockford Spring's legitimate expectations
Rockford Spring offers the same explanation — violation of its conflict of interest policy — for why plaintiffs did not meet its legitimate expectations that it uses as a "legitimate, nondiscriminatory reason" for plaintiffs' terminations. As these two issues often overlap,See e.g., Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1113 (7th Cir. 1998), the court finds it preferable to take up the conflict of interest issue in deciding whether Rockford Spring has articulated a legitimate, nondiscriminatory reason rather than at the prima facie stage. See Roberts v. Separators, Inc., 172 F.3d 448, 452 (7th Cir. 1999)
Even if the court were to squarely address the issue, it would nonetheless find plaintiffs have independently satisfied this part of their prima facie cases. That is, they have produced sufficient evidence from which a reasonable jury could conclude that they were performing their jobs up to Rockford Spring's expectations, including periodic merit-based raises and no reported instances of disciplinary action taken against them in their twenty-four and thirty-seven year work histories.
2. Whether C. Davis Sr. has a "disability" under the ADA
The ADA defines three categories of disability, see 42 U.S.C. § 12102(2); Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 950 (7th Cir. 2000), and C. Davis Sr. appears to rely exclusively on the first of these: "a physical or mental impairment that substantially limits one or more of the major life activities of the individual." 42 U.S.C. § 12102(2)(A). Conceding that his diabetes and heart condition qualify as "physical impairments," the parties focus on whether C. Davis Sr. is substantially limited in the major life activity of walking. To make this determination, the court must examine whether, when compared with the general population, he is significantly restricted as to the condition, manner, or duration under which he can walk. See EEOC v. Sears. Roebuck Co., Nos. 99-3734, 99-4037, 2000 WL 1672612, at *4 (7th Cir. Nov. 8, 2000)
C. Davis Sr. also mentions in his response brief that "he cannot even stand" because of his heart condition and diabetes. There is, however, no support in the record for this assertion and is implicitly contradicted by his affidavit which states he can in fact walk, albeit only for a block or two. As a result, the court will not consider C. Davis Sr.'s claim that he is substantially limited in his ability to stand.
As in Sears, Roebuck summary judgment is problematic in this case because the record is devoid of any evidence as to how C. Davis Sr.'s impairments limited his ability to walk in comparison with an average member of the population. See id. All the court has is his affidavit, in which he states that he can walk "no more than a city block or two" on a good day and that he must elevate his legs "immediately" because they "routinely swell." However, because the Seventh Circuit found a nearly identical allegation by the plaintiff in Sears, Roebuck, combined with the absence of any comparison evidence, enough to survive summary judgment, see id at *4-5, so too must this court find that C. Davis Sr. has met his burden on the issue of whether he is disabled under the ADA.
3. Whether C. Davis Sr.'s disabilities were more likely than not the reason for his discharge
Although the parties have skipped over the issue in their briefs, the court finds the circumstances surrounding C. Davis Sr.'s termination do not warrant the inference that his disabilities were more likely than not the reason Rockford Spring terminated him. To begin with, there is no hint that Mink treated C. Davis Sr. differently than similarly situated non-disabled employees. See e.g., Spath, 211 F.3d at 396-98. In fact, the only other non-disabled employee who was similarly situated to C. Davis Sr. was J. Davis, as Mink stated he could not recall any other employee being an owner of a spring or wire form company. (C. Davis Sr. LR 56.1(a) ¶ 58) Thus, the only similarly situated non-disabled employee in the record was treated exactly the same as C. Davis Sr.: both were discharged. C. Davis Sr. has also conceded that Mink previously accommodated him when he first had his heart attacks back in 1992 by giving him time off with disability pay, allowing him to return to the same job afterwards, and giving him time off to attend physical therapy sessions once he returned to work, all without any hassle. (C. Davis Sr. LR 56.1(a) ¶¶ 69-77) See Spath, 211 F.3d at 398 (employer's long history of accommodating disabled employee suggests that employer did not terminate employee because of disability). Perhaps the only evidence to suggest Mink terminated C. Davis Sr. because of his disabilities was the fact that Mink knew about them. But even this carries little weight as there is no causal connection between Mink knowing about C. Davis Sr.'s heart condition and diabetes in 1992 and then terminating him six years later in 1998. Cf. Bellaver v. Quanex Corp., 200 F.3d 485, 493 (7th Cir. 2000) (in Title VII context, long time period between derogatory remarks and employment action can defeat inference of causal nexus between remarks and decision to discharge).
Rockford Spring did argue that plaintiffs failed to satisfy the final prong of their prima facie cases as to their ADEA claims, but curiously did not raise the issue with respect to C. Davis Sr.'s ADA claim. Nevertheless, because of the glaring lack of evidence on this point, and because it is C. Davis Sr.'s initial burden to prove his prima facie case by a preponderance of the evidence, see Spath, 211 F.3d at 396, the court believes it necessary to address the matter.
Alternatively, even assuming that C. Davis Sr. has satisfied the fourth prong of his prima facie case under the ADA, the claim must nonetheless fail because, as discussed below, he cannot prove that Rockford Spring's articulated reasons for terminating him are a pretext. See Roberts, 172 F.3d at 451 (court may consider ultimate discrimination question notwithstanding dispute over prima facie case).
B. Pretext
Plaintiffs have therefore met their respective burdens of establishing prima facie cases on their ADEA claims (and the court assumes arguendo, as stated above, that C. Davis Sr. has done so on his ADA claim). They also do not dispute that Rockford Spring has articulated legitimate, nondiscriminatory reasons for discharging them: their violation of Rockford Spring's conflict of interest policy by being owners, directors, and shareholders of Riverside Spring, and Mink's belief that J. Davis separately violated the policy by taking springs out of Rockford Spring's scrap barrels to use in Riverside Spring's brochures. This means it is now up to plaintiffs to prove that these reasons are merely a pretext for discrimination. See Robin, 200 F.3d at 1088.
In attempting to show that Rockford Spring's explanation is unworthy of credence, plaintiffs must present evidence from which a reasonable fact finder could infer that it lied about its stated reasons for firing them. See Bell v. EPA, No. 99-3926, 2000 WL 1661834, at *4 (7th Cir. Nov. 6, 2000); Michas, 209 F.3d at 695. Such evidence can take the form of demonstrating that Rockford Spring's proffered reasons are factually baseless, not the actual motivation for plaintiffs' discharge, or were insufficient to motivate their discharge. See Jackson v. E.J. Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999) Nevertheless, plaintiffs cannot prevail if Rockford Spring honestly believed its nondiscriminatory reasons, even if those reasons are "foolish or trivial or even baseless."Id. at 984 (internal quotations and citations omitted).
With these standards in mind, the court concludes that plaintiffs have not presented sufficient evidence to rebut Rockford Spring's stated reasons for terminating them. Their most promising evidence of pretext is that Mink knew of their association with Riverside Spring in 1994. At that time, Mink apparently knew the nature of Riverside Spring's business and knew that C. Davis Sr. had given his son a loan to start up the company. He was also aware that plaintiffs advised C. Davis Jr. on particular jobs and worked part-time at Riverside Spring in their off hours. Because Mink did not object then and (according to plaintiffs) their relationship with Riverside Spring did not change between 1994 and 1998, plaintiffs argue that Mink's invocation of Rockford Spring's conflict of interest policy is not credible.
This argument, however, misses the point. While plaintiffs' level of involvement with Riverside Spring may not have changed in the intervening years, what matters is that Mink's understanding of it did change, and plaintiffs have not presented sufficient evidence to suggest otherwise. At best, plaintiffs equivocate on whether Mink knew of their status as owners, directors, and shareholders of Riverside Spring in 1994; at worst, they concede the point. Mink himself stated he did not have this information in 1994. Thus, when Mink spoke with plaintiffs in 1994, he was under the impression that their participation in Riverside Spring had been limited to providing a son with a loan to start up a new business (albeit one that produced the same type of product as Mink's own business), offering father-to-son (or uncle-to-nephew) advice regarding that business, and working part-time there. In Mink's opinion, this did not constitute a conflict of interest. It was not until 1998 that Mink learned plaintiffs had shareholder interests in Riverside Spring and held positions on its Board of Directors. He also did not suspect J. Davis of taking springs out of Rockford Spring's scrap barrel to use in Riverside Spring's brochure until 1998. Based on this new information, Mink determined that plaintiffs had violated the conflict of interest policy. This is a quintessential business decision Mink was entitled to make without the court sitting as a "super-personnel department" to second-guess him. Jackson, 176 F.3d at 984.
The court, of course, does not intimate one way or the other whether J. Davis did in fact take springs out of Rockford Spring's scrap barrel for the purpose of using them in Riverside Spring's brochure. Given J. Davis' admission that he had taken the springs, though, and Mink's belief that the springs in the brochure were nearly identical to those produced by Rockford Spring, his suspicion was nevertheless reasonable.
Plaintiffs also offer Mink's failure to follow Rockford Spring's disciplinary procedures as further evidence of pretext. They point out that Rockford Spring had a progressive disciplinary system in place but Mink simply terminated them immediately without even considering a less severe form of discipline. It is true that an employer's deviation from its normal disciplinary procedures can support an inference of pretext,see, e.g., Futrell v. J.I. Case, 38 F.3d 342, 348 (7th Cir. 1994), but not in this case. The conflict of interest provision in Rockford Spring's employee handbook specifically states that, if a conflict of interest violation occurs, the employee may be subject to "any disciplinary action which the Company feels is appropriate under the circumstances, up to and including immediate termination." (Def. Exh. D, § 108) (emphasis added) Thus, Mink's purported failure to follow the progressive disciplinary procedure does not support an inference of pretext because he was not required to do so. See Anderson v. Stauffer Chem. Co., 965 F.2d 397, 403 (7th Cir. 1992); Rotter v. Brinker Rest. Corp., No. 98 C 50256, 1999 WL 1132982, at *6 (N.D. Ill. Dec. 10, 1999) (Reinhard, J.).
Along these same lines, plaintiffs point to their spotless work histories with no prior disciplinary problems and their offers to resign their "paper titles" with Riverside Spring. Perhaps Mink could have afforded plaintiffs some leniency for their years of service, but he apparently felt the conflict was irreconcilable and could not be resolved short of termination. This decision is not so disproportionate to the situation as to imply that Mink's stated reasons were insufficient to motivate plaintiffs' terminations. Similarly, although their proposed solution of ending their "paper relationship" with Riverside Spring may have lessened the conflict to some extent, it ignored the fact that they had been violating the conflict of interest policy (in Mink's mind at least) for the last eight years without Mink knowing about it.
Finally, plaintiffs make much of Mink's inability to pinpoint a specific instance where Rockford Spring actually lost business because of plaintiffs' affiliation with Riverside Spring. Again, though, Mink's decision, even if poorly founded, is not a pretext if he honestly believed it. See Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997). In other words, Mink was not required to provide hard proof of lost profits or customers switching from Rockford Spring to Riverside Spring, so long as he honestly believed plaintiffs had an actual or potential conflict of interest.
And it is this last point that ultimately dooms plaintiffs' cases. Plaintiffs do not question at all that they did, in fact, violate Rockford Spring's conflict of interest policy. Furthermore, they have presented insufficient evidence from which to infer that Mink did not honestly believe they had such a conflict or that the conflict was not a legitimate ground for discharge.
IV. CONCLUSION
For the reasons stated above, Rockford Spring's motions for summary judgment are granted as to both Jerry Davis and Charles Davis, Sr. The cases are hereby dismissed in their entirety.
JUDGEMENT IN A CIVIL CASE
[ ] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury rendered its verdict.
[X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that defendant's motion for summary judgment is granted. The case is hereby dismissed in its entirety. Cases 98 C 50351 and 98 C 50352 have been consolidated for purposes of the Memorandum Opinion and Order.