United States District Court, Northern District of Illinois, E.D
June 30, 1983
CLETUS C. PARKER, PLAINTIFF,
FEDERAL NATIONAL MORTGAGE ASSOCIATION, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Cletus Parker ("Parker") sues Federal National Mortgage
Association ("FNMA") under the Age Discrimination in Employment
Act, 29 U.S.C. § 621-34 ("ADEA"),*fn1 alleging FNMA (1) terminated
his employment (Count I) and (2) classified him as "retired"
rather than "terminated" (Count II as amended) because of his
age. FNMA has moved for summary judgment. For the reasons stated
in this memorandum opinion and order FNMA's motion is granted.
Controlling Legal Principles*fn2
Section 623(a) makes it unlawful for an employer:
(1) to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual's age;
(2) to limit, segregate, or classify his employees
in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because
of such individual's age; or
(3) to reduce the wage rate of any employee in
order to comply with this chapter.*fn3
As Golomb v. Prudential Insurance Co. of America, 688 F.2d 547,
550 (7th Cir. 1982) (emphasis in original) teaches:
Thus, to establish a cause of action under the ADEA,
a claimant must show that he was discriminated
against because of his age.
ADEA does not make it unlawful, for instance, simply to discharge
an employee between the ages of 40 and 70. ADEA violations occur
only when employers allow age to be "a determining factor" in
discharge or other employment decisions. Id. at 551-52 & n. 2.
In both Golomb, id. at 551 and Kephart v. Institute of Gas
Technology, 630 F.2d 1217, 1219 (7th Cir. 1980), cert. denied,
450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981), our Court of
Appeals approved for use in ADEA cases the ping-pong-match
burden-of-proof formula that the Supreme Court has devised for
employment discrimination cases under Title VII of the Civil
Rights Act of 1964. As summarized in Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct.
1089, 1093, 67 L.Ed.2d 207 (1981) (citations omitted), that
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in
proving the prima facie case, the burden shifts to
the defendant "to articulate some legitimate,
nondiscriminatory reason for the employee's
rejection." . . . Third, should the defendant carry
this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a
pretext for discrimination. . . .
The nature of the burden that shifts to the defendant
should be understood in light of the plaintiff's
ultimate and intermediate burdens. The ultimate
burden of persuading the trier of fact that the
defendant intentionally discriminated against the
plaintiff remains at all times with the
plaintiff. . . . [That] division of intermediate
evidentiary burdens serves to bring the litigants and
the court expeditiously and fairly to this ultimate
But the Supreme Court has recently reminded litigants and lower
courts they should not lose sight of that "ultimate question" —
intentional discrimination vel non — as they work through the
Burdine formula in a trial of an employment discrimination action
on the merits. United States Postal Service Board of Governors v.
Aikens, ___ U.S. ___, ___, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403
That admonition presumably applies as well in the "mini-trial"
conducted on a motion for summary judgment. Our Court of Appeals
has recently restated the law governing such a motion in Egger v.
Phillips, 710 F.2d 292 at 296-297 (7th Cir. 1983) (citations
A party seeking summary judgment under Fed.R.Civ.P.
56 must demonstrate the absence of a genuine issue of
material fact. . . . In judging whether or not the
movant has met this burden, the court must view the
evidence submitted by the
movant in the light most favorable to the non-moving
party. . . . If, and only if, the movant meets his
initial burden, it is incumbent upon the opposing
party "to set forth specific facts showing that there
is a genuine issue for trial. If he does not so
respond, summary judgment, if appropriate [as a
matter of the governing law], shall be entered
against him." . . . However, it is always prudent to
respond to a motion for summary judgment, even if the
opposing party believes that the movant has failed to
sustain his initial burden.
Moreover, a factual dispute does not preclude summary
judgment unless, of course, the disputed fact is
outcome determinative under the governing law. It is
thus axiomatic that even in the face of some factual
disputes, "where the undisputed facts demonstrate
that one party is entitled to judgment as a matter of
law, summary judgment in favor of that party is
entirely appropriate," . . . just as it is plain that
if genuine factual disputes are resolved in favor of
the non-movant, summary judgment may be entered in
favor of the movant if appropriate as a matter of
Blending that analysis with governing ADEA law yields the
1. FNMA has the initial burden of showing the
absence of a genuine issue as to its intention to
discriminate against Parker because of his age.
2. If FNMA meets its burden Parker must set forth
facts showing a genuine issue as to FNMA's intent.
3. Only if there is no genuine issue of fact on
that score may summary judgment be granted FNMA.
This Court is not unmindful of the difficulty of granting
summary judgment when the central material issue is one of
intent. But summary judgment is proper where a "plaintiff [has]
no indications of motive and intent, supportive of his position,
to put on the scales for weighing." Kephart, 630 F.2d at 1218.
That is the precise situation here: Parker's is "a wholly empty
FNMA is a publicly-held United States corporation with its home
office in Washington, D.C. and regional offices in Atlanta,
Chicago, Dallas, Los Angeles and Philadelphia (Mem. 2). FNMA
serves the secondary mortgage market, purchasing FHA/VA and
conventional residential mortgages for primary lenders and then
servicing those purchased mortgages (Parker Dep. 15-17).
Before late 1981 FNMA's Chicago office comprised six divisions:
Home Mortgage, Project Mortgage, Urban Activities, Regional
Counsel, Regional Controller and Regional Administration. Parker
was employed as a Senior Loan Representative in the Project
Mortgage Division. That division (1) committed, purchased and
serviced FHA multi-family residential mortgages and (2) approved
condominium and subdivision development projects (id. at 17).
In late 1980 the Project Mortgage Division consisted of one
purchasing team, four servicing teams and the regional appraiser
and underwriter and their secretaries. It was the purchasing
team's responsibility to approve the purchase of multi-family
residential mortgages submitted to FNMA by its customers (id. at
20-21). Once a mortgage was approved and purchased, the servicing
teams would take over the loan portfolios and oversee such things
as the regular
mortgage payments by the property owner and the current status of
tax bills, insurance policies and chattel mortgages (id. at 21).
Each servicing team had a Senior Loan Representative at its head
and also included one Loan Representative, one or more Loan
Technicians, a secretary and one or more clerks (id. at 19).
Parker (age 62) was one of four Senior Loan Representatives
heading the servicing teams, the others being Thomas Monico
("Monico," age 31), Meredith Wright ("Wright," age 55) and Craig
Bromann ("Bromann," age 31), while the Senior Loan Representative
on the purchasing team was Robert Haren ("Haren," age 57) (Morton
Aff. ¶ 4).
In January 1981*fn5 FNMA, responding to declining mortgage demand,
implemented the first of two major reorganizations affecting the
Project Mortgage Division. Its Washington home office directed
that the Chicago office servicing teams be reduced in number from
four to two (Parker Dep. 24). To determine who should head the
two remaining teams, Morton (age 60) reviewed the qualifications
of the four incumbent Senior Loan Representatives. First Morton
chose Monico, whose job performance had always been consistently
rated as superior. Morton also decided Wright's performance and
qualifications were better than those of the other two Senior
Loan Representatives and thus he too should remain as a
supervisor. Instead of terminating Bromann and Parker as surplus
personnel, Morton elected to retain them as Senior Loan
Representatives on the two remaining servicing teams, but their
positions were designated as "overfill" positions with the hope
they could be placed in other positions as vacancies occurred
through normal attrition. Haren was retained as the Senior Loan
Representative on the purchasing team (Morton Aff. ¶ 5).
Morton met with Parker in January and explained the basis for
the cutback and its effect on him. Though Parker did not dispute
Morton's selection of Monico to head one of the remaining
servicing teams, he questioned the selection of Wright over
himself to head the second team. Morton explained Wright's
previous experience as a property manager had worked to Wright's
advantage in the decision (Parker Dep. 24, 27).
Due to the continuing decline in the mortgage industry, in late
1981 FNMA's home office instituted another major reorganization
calling for substantial reduction of its work force. Following
preparation of an extensive feasibility study, FNMA decided to
consolidate the servicing of project mortgages for all its five
regional offices into the Atlanta and Los Angeles offices. That
would eliminate the servicing function of the Chicago, Dallas and
Philadelphia offices, and more specifically the Chicago loan
portfolios would be transferred to Atlanta and Los Angeles
(Morton Aff. ¶ 6). At the same time the home office instituted a
streamlined selling and servicing system to simplify many FNMA
procedures in servicing and purchasing home mortgages. Finally,
more responsibility was placed on customer companies to service
home mortgages (id.; Morton Dep. 12). As a result the Chicago
office consolidated its Home Mortgage and Project Mortgage
Divisions into a single new Production and Loan Administration
Division (Morton Aff. ¶ 7), and Chicago work force requirements
were reduced from 107 to 84 employees, eliminating 18 job
positions in the project mortgage servicing teams and five other
positions in other divisions (id.; Morton Dep. 13).
In November Chicago office senior management met to determine
which of the existing Chicago employees would be retained to fill
the limited number of available job positions. In attendance were
Regional Vice President Jack Hayes ("Hayes," age 43), Assistant
Regional Vice President of Home Mortgages Edward Sambol
("Sambol," age 57); Assistant Regional Vice President of
Marketing Francis Moncey ("Moncey," age 53), Morton and Kim (age
51). (Morton Aff. ¶ 8).
Before that meeting each manager was asked to review the
within his division. Morton was responsible for reviewing Project
Mortgage personnel. When Senior Loan Representatives were
considered, based upon Morton's recommendations it was decided to
retain Haren as Senior Loan Representative for the purchasing
function, which remained in Chicago as part of the new Production
and Loan Administration Division. Based on his superior
qualifications and prior performance, Monico was designated
Manager, Loan Administration, in that newly-created Division.
Wright and Bromann had previously expressed interest in the
Chicago office Urban Activities division (now the Marketing
Division), which was involved in marketing FNMA programs for
community development in urban areas. Both of them had previously
been interviewed and favorably reviewed by Moncey, the official
in charge of the Urban Activities area. Though they had not then
been placed in the division, they expressed a continuing interest
in future vacancies and were told they would be considered for
any such vacancies. Under the major 1981 reorganization, two
positions in the newly-created marketing area dealt with this
type of activity and had to be filled. At the November meeting
management determined that based upon their prior expressions of
interest and their qualifications, Wright would be made Community
Development Coordinator and Bromann Senior Loan Representative in
the Marketing Division (id.).
Because there were no other Chicago office Senior Loan
Representative positions or equivalent jobs, Parker was told his
services would not be required after January 31, 1982. Morton
personally told each affected member of the Division of FNMA's
decision and the reason for the decision (id. at ¶ 9; Parker Dep.
35-36). FNMA also notified each employee by letter. Parker's,
received December 8, said (Complaint Ex. A):
[B]ecause of changes in how the Corporation intends
to conduct its future business and the centralization
of multifamily housing activities in Atlanta and Los
Angeles, your services will not be required after the
close of business on January 31, 1982.
Shortly thereafter Morton and Parker first discussed the
possibility of Parker's transferring to the Atlanta office. When
Parker indicated he would be interested, Morton called the
Atlanta office to ask about such a transfer (along with the
project mortgage loan portfolios). Atlanta personnel replied they
would see if such a transfer could be authorized and would get
back to Morton (Morton Aff. ¶ 10).
About December 10 Parker met with Domenico to discuss the term
of Parker's termination. Domenico advised Parker he was eligible
for retirement benefits because he had more than five years of
service with FNMA and was over 55 years of age. During the
discussion, Parker said he understood the business reasons for
his termination but asked whether he could be transferred to the
Atlanta office (Domenico Aff. ¶ 4; Parker Dep. 56). Parker said
he would like the transfer so he could work another
one-and-a-half years until he was 65 — when he had planned to
retire anyway (Domenico Aff. ¶ 4).
Thereafter Morton received word Parker's transfer to the
Atlanta office had been authorized. Morton then spoke with Parker
and told him Atlanta was interested and wanted him to work there.
Parker told Morton he could not give him a yes or no answer at
that time. Morton later spoke with Parker again and was given the
same answer. Morton then referred the matter to Kim to get an
answer from Parker (Morton Aff. ¶ 11; Morton Dep. 35-36).
On January 8, 1982 Kim spoke to Atlanta Assistant Regional Vice
President for Accounting and Administration Lewis Jones
("Jones"). Jones formally asked Kim to offer the Senior Loan
Representative job to Parker on these terms:
1. Parker's job level would be 57 (the same as his
2. FNMA would pay for:
(a) the moving expenses of normal household goods
in accordance with corporate policy;
(b) transportation expenses of Parker and his
(c) two weeks of lodging and food expenses while
Parker looked for a house in Atlanta.
3. Also in accordance with corporate policy, FNMA
would not be involved in the sale of Parker's Chicago
residence or the purchase of a new residence in
Atlanta. (Kim Aff. ¶ 4).
Parker told Kim he would need some time to think over the offer
and said he would inform Kim of his decision by January 12, 1982
(id. at ¶ 5).
Parker was absent from work on sick leave January 12, 1982.
After he came to work the next morning, Kim asked if he had
reached a decision. Parker told Kim that in light of what FNMA
had done with the servicing function in Chicago he thought there
would be no guarantee FNMA might not move the servicing function
out of Atlanta as well. Parker therefore had doubts about the
longevity of the Atlanta office job and insisted upon a written
employment contract. Parker also expressed worry about his
ability to sell his house in Chicago and FNMA's unwillingness to
be involved in that sale. He therefore told Kim his decision
regarding the transfer was "not yes" (id. at ¶ 6). Kim tried to
call Jones later that day to advise him of Parker's response, but
the Atlanta office had been closed due to weather conditions.
Because Kim was going on vacation the next day, he asked Domenico
to follow up on the matter (id. at ¶¶ 7-8; Domenico Aff. ¶ 5).
Domenico met with Parker the next day, January 14, 1982 and
asked for a more definitive answer. Parker told Domenico he would
have to decline the transfer to Atlanta for the following reasons
(id.; Parker Dep. 58-59):
1. the possible loss on the sale of his home in
2. his wife's job in Chicago; and
3. the lack of any guaranty that the new job in
Atlanta would be permanent there.
Parker made no attempt to communicate with any FNMA Atlanta
officials or set up an interview in Atlanta to discuss his
concerns about the longevity of the position offered him (id. at
Parker continued to work for FNMA through January 31, 1982 (id.
at 9). Upon termination he received benefits due him under FNMA's
retirement plan. He did not receive severance pay because FNMA's
policy provided such pay only to involuntarily terminated
employees who are ineligible for retirement benefits (Domenico
Aff. ¶ 6).
From the just-completed factual recital it is clear that:
1. FNMA's decision to discharge Parker was based on
a business judgment as to the relative strengths of
its staff members, a judgment it was forced to make
because of a decline in its business.
2. Indeed FNMA sought to avoid Parker's discharge
by offering him the lateral transfer to Atlanta.
3. Parker's post-discharge classification as
"retired" rather than "terminated" was in accord with
age-neutral FNMA policy as to entitlement to
In all, FNMA's evidence shows Parker's age was not a factor in
its decision as to his employment and subsequent classification.
Parker admits (Ans. Mem. 4) he must produce "some evidence" to
counter FNMA's. But that means Parker must produce facts raising
a genuine issue as to FNMA's intent — bare conclusory allegations
and assertions will not do. See Menefee v. General Electric Co.,
548 F. Supp. 619, 621 (N.D.Ill. 1982). Although Parker confirms
(1) he is within the age group protected by ADEA, (2) he was
discharged and (3) he was then classified as "retired," he has
shown no facts suggesting a causal link between his age and
FNMA's decisions. See id. at 623.
Parker first cites (Ans. Mem. 6 and App. B) a late 1978
Performance Review of Monico, in which it was said:
This is one of the younger members of the Regional
staff who, with the others,
comprise a strong asset base that portends well for
Parker seeks to read into that statement an indication of FNMA's
unlawful preference for its younger employees. But (1) the Monico
evaluation, in context, is merely descriptive and neutral on its
face, (2) that evaluation does not imply negative views as to
older employees and (3) in any event, FNMA simultaneously praised
Parker for his experience and noted the drawbacks of Monico's
youth (FNMA R. Mem. 3-4 and Exs. 1 and 2; P1. Ans. Mem. App. B).
In short, Parker's reading of Monico's 1978 evaluation proves
only that all things look yellow to the jaundiced eye.
Parker then says (Ans. Mem. 10) his senior-level salary was a
factor in FNMA's decision to discharge him.*fn6 But Parker's own
deposition testimony confirms FNMA's offer to transfer him
laterally to Atlanta, a transfer he refused on grounds unrelated
to the quality of that position (Parker Dep. 58-60). FNMA's
transfer offer certainly refutes the claim it unlawfully targeted
Parker's salary — as a surrogate for age — in deciding whom to
Parker's fallback position (Ans. Mem. 7-9, 12) is a
quasi-statistical analysis of the results of FNMA's reduction in
its work force. But that analysis lumps together FNMA's employees
regardless of the different divisions to which they were
assigned, and so Parker is just not responsive to FNMA's account
of its particular problems with its Chicago Project Mortgage
Division. See R. Mem. 7. Within that division the numbers of
employees are really too small to generate statistically valid
inferences of discriminatory intent. See Soria v. Ozinga Bros.,
Inc., 704 F.2d 990, 995 (7th Cir. 1983) and cases there cited.*fn8
Moreover, Parker's analysis of the "statistics," not
surprisingly, is colored by the preordained conclusion he wants
to reach — the "statistics" simply do not lead to inferences in
his favor. See R. Mem. 8-10.
Finally, as to his Count II claim Parker has produced no facts
in support of his position. Ans. Mem. 14 does not cite any facts
suggesting Parker's classification was done for any reason other
than the one advanced by FNMA: His entitlement to retirement
benefits meant he would be "retired" and not "terminated." That
determination in fact rewards length of service regardless of
There is no genuine issue as to any fact material to FNMA's
intent in discharging Parker and classifying him as "retired."
FNMA is therefore entitled to a judgment as a matter of law. Its
motion for summary judgment is granted*fn9 and this action is
dismissed with prejudice.