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March 20, 1984


The opinion of the court was delivered by: Bua, District Judge.


The case at bar was brought by plaintiff, Forrest N. Fugate against his former employer, defendant Allied Corporation, challenging his termination of employment under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Before the Court is the defendant's Motion for Summary Judgment. For the reasons stated herein, Summary Judgment is denied.

The undisputed facts are as follows: Fugate was employed by the Bunker Ramo Corporation for 22 years when, in July, 1981, it was acquired by defendant Allied. At the time of the acquisition, Fugate was employed by Bunker Ramo as an attorney at their Oak Brook, Illinois headquarters. Following the acquisition, Bunker Ramo was reorganized and its law department disbanded. Prior to the dissolution, the department had been comprised of eight individuals including seven attorneys and one individual, the Director of Patents, who was not an attorney but was licensed to practice before the U.S. Patent Office. Two of the attorneys were employed at Bunker Ramo's Trumbull, Connecticut offices.

As a result of the reorganization, the three oldest individuals in the Bunker Ramo law department were left without jobs. These included plaintiff, who was 57 years old at the time of the reorganization, another attorney, Nicholas Camasto, who was 51, and the Director of Patents, Fred Arbuckle, who at 59 was the oldest member of the department.

From 1977 until March, 1981, plaintiff held the title of Senior Counsel and Assistant Secretary. In this capacity, plaintiff was assigned to the company's Electronics Systems Division (ESD). Roughly 25 percent of his time was devoted to his ESD duties while 50 percent of his time went to his corporate secretary duties. The remaining 25 percent was spent monitoring legislative developments relevant to the corporation.

In March, 1981, in addition to his previous duties, plaintiff assumed the role of Division Counsel for Amphenol North America, a Bunker Ramo division, on a temporary basis. However, plaintiff admits he never sought the position on a permanent basis.

Allied acquired Bunker Ramo on July 31, 1981. At that time, Kevin Salisbury of Allied became responsible for integrating the Bunker Ramo legal department into Allied. To this end, Salisbury consulted with David Fewkes, Bunker Ramo's general counsel. Thereafter, in November, 1981, the Amphenol Divisional Counsel position, which plaintiff had temporarily filled, was permanently filled by Gary Grolle, a 37-year-old attorney who had been counsel to Bunker Ramo's Borg Textile Division. Following this appointment, plaintiff assumed Grolle's former duties along with the duties he had previously been assigned.

By February, 1982, it had been decided that Bunker Ramo's operating divisions would be realigned into two new Allied Companies, Allied Electronics Components Company (AECC), and Allied Information Systems Company (AISC). As part of that reorganization, the Amphenol and International Divisions were to be merged into a new Amphenol Division which was to be a part of AECC. The Electronics Systems Division for which plaintiff was counsel was merged into AISC. Under this plan, the Oak Brook Bunker Ramo headquarters were to be closed on March 31, 1982. Those individuals who did not secure new positions with Allied were to be terminated as of that date.

Of the Bunker Ramo attorneys who were subsequently employed by Allied, two, Robert Predan, age 49, and Gary Grolle, age 37, were engaged in the new Amphenol Division. Predan was assigned the international work on Fewkes' recommendation and based on the fact that he had been responsible for Bunker Ramo's Amphenol International Division since 1977.*fn1 Grolle, who up to that time had handled Amphenol's domestic work, was retained in that capacity with the new Amphenol Division, notwithstanding that, by Salisbury's own admission, plaintiff was considered for the position. In addition, James Brooks, age 37, and James Clayton, age 34, attorneys who also had worked for Bunker Ramo, were able to secure employment with Allied, Brooks with the company's Information Systems Company, and Clayton with its Health and Scientific Company. Finally, David Fewkes, upon whose recommendations many of the reassignments were made, was offered a position as general counsel of AESC, a position which he declined.

After plaintiff was notified of his termination, but before his severance pay was discontinued, Allied hired five new attorneys for various positions within the organization. Each of these attorneys was hired as a general attorney rather than as a patent attorney, and each is younger than plaintiff.

In support of its motion for summary judgment, defendant argues that the reorganization was an even-handed one which, coincidentally, resulted in the terminations of the three oldest law department members. However, plaintiff contends that he was treated differently with respect to available jobs and that there exists direct evidence of discriminatory animus. Defendant also argues that plaintiff's claim is procedurally barred.


I. The Merits of the ADEA Claim

Defendant first argues that there is no issue of fact present. Under Section 4(a) of the ADEA, it is "unlawful for an employer to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age." 29 U.S.C. § 623(a)(1). In order to succeed under the ADEA, plaintiff must first establish a prima facie case of discrimination. If he is successful, the defendant must articulate a legitimate, nondiscriminatory reason for the challenged employment decision. Plaintiff may rebut this contention by showing that this putative justification was merely a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, ...

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