The opinion of the court was delivered by: Rovner, District Judge.
MEMORANDUM OPINION AND ORDER
Dayton Bernstein ("Bernstein") and Harry Nissenson
("Nissenson") (collectively "Plaintiffs") brought this action
under the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. § 621, et seq. ("ADEA") against Consolidated
Foods Corporation ("Consolidated Foods"), Douwe Egberts Company
("Douwe Egberts"), Douwe Egberts Superior Company ("DESC"), and
Superior Coffee Company ("Superior") (collectively
"Defendants"), seeking various forms of relief for Defendants'
alleged age discrimination against Plaintiffs. Subject matter
jurisdiction is based on 28 U.S.C. § 1331, 1343, and is not
For purposes of a motion for summary judgment, this Court
must, of course, view all pleadings and supporting papers in
the light most favorable to the non-moving party. Trulson v.
Trane Co., 738 F.2d 770 (7th Cir. 1984). Thus, the facts are
stated below in the light most favorable to Plaintiffs. See
Vaught v. R.R. Donnelley & Sons Co., 745 F.2d 407 (7th Cir.
1984); Trulson, 738 F.2d at 771.
Plaintiff Bernstein, born on December 8, 1927, began working
for Superior Tea and Coffee Company ("Superior Tea") in 1953.
Plaintiff Nissenson, born on November 11, 1919, started
working for Superior Tea in 1958. Both men advanced themselves
in the company: Bernstein became Vice President of Operations
in 1968, then Senior Vice President of Operations in 1972;
Nissenson became Vice President of Finance in the early
In January, 1979, Douwe Egberts, a Dutch corporation,
purchased Superior Tea, renamed it Douwe Egberts Superior
Company ("DESC"), and began to operate it as a wholly-owned
subsidiary. Before the purchase, 95% of Superior Tea had been
owned by two brothers, Earl and Sanford Cohn, who were
Chairman and President, respectively. Shortly after the
acquisition, Bernstein and Nissenson signed three year
employment contracts with Douwe Egberts' American identity,
Moccomat Beverage Systems. Under these contracts, DESC's Board
of Directors and Chief Executive Officer retained the right to
change their titles or duties. In all other respects, the
management structure remained unchanged.
In May, 1979, Douwe Egberts initiated a series of changes.
Antoine Beumer was installed as Vice Chairman of DESC; upon
Sanford Cohn's retirement in January, 1980, Beumer was
appointed President. Also in mid-1979, Hans Van der Linden
came from Douwe Egberts for the purpose of conforming DESC's
accounting report to the requirements of its new Dutch parent
company. He was appointed Director of Financial Control,
reporting to Nissenson. At the same time, Nat Zivin was
transferred to DESC from Consolidated, Douwe Egbert's parent
company, as a consultant. In October, 1980, upon the
retirement of Earl Cohn, Zivin became Chairman of the Board
and Chief Executive Officer of DESC. Soon after, the new
leadership of DESC substantially changed the responsibilities
of both Mr. Bernstein and Mr. Nissenson.
1. Mr. Bernstein's Claims
In October, 1980, Zivin told Bernstein that he would no
longer be Senior Vice President of Operations but instead
would assume a new position, Vice President of Corporate
Planning and Development. Zivin contends that he made the
change because of Bernstein's allegedly autocratic management
style and a perceived need for long-range planning. When
informed of the change by Zivin, Bernstein expressed concern
that he would not be able to operate in that position
effectively because he would have no access to inside
information concerning the corporation. In response, Zivin
told Bernstein that he had no choice but to give the new
position a try.
Several weeks later, Bernstein met with Zivin again and
complained that his new position was a sham: there was nothing
to do, and no one would provide him with any information.
Bernstein asked Zivin "where [he] stood in the organization"
and Zivin told him to "take time over the weekend to determine
how [he] would fit into the company." Based on a rumor that
Beumer was returning to Holland, Bernstein prepared a
memorandum proposing that he be considered for President or
Executive Vice President. In response, Zivin and Beumer told
Bernstein that they would not consider him for either
position. According to Bernstein, Zivin and Beumer would not
disclose the reason for their refusal. They merely told him
that no other place existed for him in the company, and they
suggested that he
"find employment elsewhere." In addition, they told Bernstein
that he could use their telephone to make calls, that he could
take time off for interviews, and that it would be in his best
interest to start searching. At the same time, according to
Bernstein, they said that there was nothing wrong with his
abilities or job performance.
Shortly thereafter, Bernstein's secretary was transferred to
someone else, and he spent the next five months working only
approximately one hour per day. In March, 1981, Bernstein
decided to resign from the company because of stress-related
health reasons. At a meeting that included Beumer, Zivin and
Bernstein negotiated a resignation agreement. By the
resignation agreement, the company gave Bernstein
approximately $50,000, in return for his agreement not to seek
"any other remuneration, compensation or payments from [DESC]
or Douwe Egberts relating to [his] employment. . . ." No
discussion occurred regarding any potential age discrimination
claim or any other legal claims Bernstein might have against
the company. The resignation was effective March 6, 1981.
2. Mr. Nissenson's Claims
In early 1980, Nissenson found that he was sharing
responsibilities for the accounting function with Hans Van der
Linden, the Douwe Egberts accountant. Later that year, Dan
Kulik was brought in from Consolidated Foods as a consultant.
Kulik worked directly with Van der Linden, rather than with
Nissenson. In October, 1980, Zivin informed Mr. Nissenson that
he would be relieved of all current major responsibilities
except over the credit department, and that instead he would
be responsible for the equipment service department and a new
cost-cutting program. Zivin contends he made the change for
two reasons: Kulik had advised Zivin that a restructuring of
the financial reports was necessary to improve the company's
position, and Zivin believed that Nissenson's experience was
well-suited to the important job of reviewing and cutting
costs. In his place, Dan Kulik assumed responsibility over the
Financial Control and Management Information Services
departments. In January, 1981, 39-year-old Kulik was appointed
to the new position of Executive Vice President of
Administration, responsible for coordinating all financial and
administrative functions of the company.
Mr. Nissenson began working on his new duties, spending a
great deal of time reviewing expenses, preparing memoranda,
and making recommendations. He was frustrated in performing
his job, however, by a total lack of information and authority
to make changes. Moreover, he could not work directly with
those whose work he was supposed to analyze.
Nissenson began to complain to Zivin that he had no real
responsibility. Nissenson recalled one such meeting where
Zivin said to him, "Why don't you and I retire and go
fishing." In early May, 1981, Nissenson met with Zivin and
told him: "You've made a nothing out of me. . . . You've taken
the job away and on that basis I feel I'm forced to retire."
According to Nissenson, Zivin replied, "Harry, I'm sorry you
feel that way, but maybe it would be for the best." Nissenson
and Zivin discussed the terms of a resignation agreement.
Again, no discussion occurred regarding Nissenson's waiver of
any potential claims he might have against the company.
Nissenson's resignation became effective May 8, 1981.
Under Section 623(a) of the ADEA, it is unlawful for an
employer `. . . 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.'
29 U.S.C. § 623(a). In cases brought under the ADEA, the courts
have applied uniformly the test for causation established in
McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). See Parker v. FNMA, 741 F.2d 975 (7th Cir.
1984) (and cases cited therein). Using this method: