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, ...