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SELSOR v. CALLAGHAN & CO.

February 25, 1985

ALBERT C. SELSOR, PLAINTIFF,
v.
CALLAGHAN & COMPANY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Callaghan & Company ("Callaghan") fired Albert Selsor ("Selsor") in 1983. Selsor was 58 years old then and had worked for Callaghan for 12 years. He filed this lawsuit against Callaghan, alleging that his dismissal violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The parties have completed discovery, and Callaghan has moved for summary judgment. For the reasons stated below, that motion is granted.

The following material facts are undisputed.*fn1 Callaghan is a publisher of legal books and research materials. It hired Selsor in 1971 as Advertising Manager. Born February 21, 1925, Selsor was 46 when hired.

Before 1979 Callaghan was fairly small, holding a fraction of the legal publications market. In 1979 Callaghan became a subsidiary of "International Thomson Organisation Limited" ("Thomson"), which planned to expand Callaghan's share of the legal publications market. In February of 1981, Callaghan hired Randy Cochran ("Cochran") as Vice-President of Marketing to develop its policy of expansion. Cochran was a supervisor of Selsor. Cochran made many changes, and Selsor concedes that Cochran was effective.

Shortly after joining Callaghan, Cochran told Selsor that he respected the years of service Selsor had given to the company, and that he was looking forward to using his experience. In June of 1981, Cochran evaluated Selsor. Selsor received a satisfactory evaluation, which contained both praise and suggestions for improvement. In particular, Cochran felt that Selsor needed to solicit competitive bids for advertising and become more cost effective. Among Selsor's strong points were his "experience with Callaghan" and his "attitude." Following this evaluation, Cochran told Selsor that he would monitor Selsor's performance concerning cutting costs, and that this was considered an important part of Selsor's job.

Cochran grew more dissatisfied with certain aspects of Selsor's performance, especially with Selsor's failure to expand the range of suppliers and solicit competitive bids. Cochran met with Selsor on September 4, 1981, to review Selsor's strengths and weaknesses, which were listed in a memorandum given to Selsor. Cochran felt that Selsor had set unrealistic timetables, was time-oriented rather than task-oriented, had not solicited bids successfully and had not been assertive enough with outsiders. Selsor understood that Cochran felt that these were problems with his performance.

At the September 4 meeting, Cochran told Selsor that he was planning to hire an Assistant Advertising Manager, who would eventually assume Selsor's position. Cochran felt that Selsor had weaknesses as a manager, but had strengths on the creative side of advertising. Thus, Selsor would at some time work on the creative end of the business. On December 14, 1981, Callaghan hired Edwyn Gold ("Gold"), then 47 years old, as Assistant Advertising Manager. Selsor was one of the people who interviewed Gold, and he agreed that Gold was the best applicant for the job.

Gold was an effective manager. He cut costs and streamlined the advertising operation. Meanwhile, Cochran became increasingly dissatisfied with Selsor's performance and his attitude. He and Selsor had had several discussions in which Cochran said that Selsor was not responding well to Cochran's new system. Finally, at a marketing meeting on December 20, 1982, Cochran stated that two or three unnamed employees were "coasting," and not responding to Cochran's programs. He called for their resignations by the end of January 1983. Selsor learned that he was one of these unnamed employees, and a few days later he went to see Cochran. Cochran said, among other things, that Selsor's attitude had been deteriorating, that he and Gold had not been getting along, and that he had not been giving "110 percent." Cochran told Selsor that he was going to follow through on his plan of naming Gold as Advertising Manager. Selsor would assume the position of "Production Coordinator" and keep the same salary and benefits. This change was made in January 1983. Selsor admits that the change was a reasonable business decision.

Although Selsor's relationship with Gold had been good initially, their rapport gradually deteriorated. They developed a personality conflict. This conflict intensified when Gold became Advertising Manager. Selsor had thought he and Gold were to have equal authority. However, he found himself subservient to Gold in his new position. Selsor became unhappy, according to his deposition testimony, because he never actually received creative work or a description of his new job. Instead, he was given clerical and menial tasks. Meanwhile, Gold was dissatisfied with Selsor's work and attitude. Gold felt that Selsor had made several mistakes. Selsor does not deny that he made mistakes, but says that they were easily corrected and cost the company nothing. Selsor admits that Gold frequently criticized him and yelled at him.

Finally, on April 1, 1983, Selsor was formally placed on thirty days probation. His notice listed several mistakes and deficiencies. He decided to take two weeks vacation then. Before leaving, he asked to be placed in another position at Callaghan. When he returned, he was told that no jobs were available. His last day at Callaghan was April 23, 1983. No one was hired to replace him as Production Coordinator. He filed this lawsuit later that year, alleging that he was discharged because of his age.

Section 623 of the ADEA makes it illegal for an employer "to discharge any individual . . . because of such individual's age." 29 U.S.C. § 623(a). As plaintiff, Selsor bears the burden of proving that age was a determining factor in Callaghan's decision to fire him; that is, he must prove that "but for" his age, Callaghan would not have fired him. See, e.g., LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984). Selsor may take two tacks in proving age discrimination. First, he may prove by direct or circumstantial evidence that he was dismissed because of his age. Id. Selsor has not relied on this approach. He has chosen the second, much more common approach, based on the burden-shifting tests of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Under the McDonnell Douglas approach, as modified for the context of an ADEA case,*fn2 Selsor may make out a prima facie case of age discrimination by showing (1) that he was in the age group protected by the ADEA, that is, between 40 and 70 years old; (2) that he was doing his job well enough to satisfy Callaghan's legitimate expectations; (3) that he was fired; and (4) that Callaghan sought a replacement for him. LaMontagne, at 1409-10; Huhn v. Koehring Co., 718 F.2d 239, 242-43 (7th Cir. 1983). If Selsor meets this burden, he enjoys a presumption that he was dismissed because of his age. However, Callaghan may rebut this presumption by articulating a lawful reason for the discharge. This is merely a burden of production. The burden of proof always rests on the plaintiff. See, e.g., LaMontagne, at 1409, citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If Callaghan dissolves the presumption, to prevail Selsor must prove that the articulated reasons are a pretext, by showing either that Callaghan was more likely motivated by a discriminatory reason or that its justification is not credible. Id. Under this indirect method of proof, it is possible to prove age discrimination without introducing any evidence that age motivated the employer. Id. at 1409-10.

Our present task in applying the above standards is to decide whether summary judgment is appropriate. Summary judgment is unusual in an employment discrimination case because so much often depends on an employer's credibility and his or her hidden or unconscious motives. However, summary judgment may be appropriate where no evidence suggests that motive and intent are involved. See Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1218 (7th Cir. 1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981); see also Parker v. Fed'l National Mortgage Assn., 741 F.2d 975, 979-81 (7th Cir. 1984) (affirming district court entry of summary judgment because of failure to prove pretext); Huhn, 718 F.2d at 243-45 (affirming entry of summary judgment because of failure to prove prima facie case). The usual summary judgment standards apply. Summary judgment may be granted only if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As the moving party, Callaghan must show that no genuine issue of material fact exists. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir. 1984). We must view the evidence, and the reasonable inferences drawn from the evidence, in the light most favorable to Selsor, the party opposing the motion. Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir. 1984). If Callaghan fails to meet its "strict burden of proof," we must deny summary judgment. Id. But if Callaghan does meet its initial burden, we must see whether Selsor has met its resulting burden of creating a genuine issue as to that fact. To meet this burden, Selsor cannot rest on bare pleadings or bald assertions. Fed.R.Civ.P. 56(e); Big O, 741 F.2d at 163. With these standards in mind, we turn to the merits.

Because Selsor has presented no direct evidence of age discrimination,*fn3 we will evaluate the undisputed facts in light of the McDonnell Douglas criteria spelled out earlier. The parties agree that Selsor meets two of the criteria. At 58 when fired, Selsor falls within the ADEA's protected age group. Secondly, he was fired.*fn4 The parties disagree over whether Selsor meets the other two criteria. First, Callaghan contends that Selsor was never replaced as Productions Coordinator and therefore cannot satisfy the fourth element of his prima facie case. Although Selsor was never replaced as Productions Coordinator, one might reasonably infer from the facts that Selsor was in reality "discharged" when Ed Gold replaced him as Advertising Manager in January 1983. Looking at the facts in a light most favorable to Selsor, it is reasonable to infer that the decision to fire Selsor was ...


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