Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP83-835C-Sarah Evans Barker, Judge.
Before BAUER, EASTERBROOK, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*
BAUER, Circuit Judge. Plaintiff appeals the dismissal of his age discrimination action on defendant's motion for summary judgment. The district court granted defendant's motion, holding that plaintiff failed to establish a prima facie case of age discrimination and, further, that defendant discharged plaintiff for non-discriminatory reasons. For the reasons stated below, we reverse the decision of the district court and remand for trial.
Plaintiff David Stumph began his employment with defendant Thomas & Skinner, Inc. (the Company) in 1960 as a personnel manager at an annual salary of $7,500, In the twenty-two years he was employed by defendant, plaintiff held a number of increasibly important important positions and his salary eventually increased to $32,800 a year. In 1979, when plaintiff held the position of Manufacturing Manager with 150 employees under his supervision, the Company hired Sherman Smith, a man younger than plaintiff, to work on technical matters involved in the production of the Company's product. According to plaintiff, Smith made "several major errors" regarding the production of the Company's product and the purchase of raw materials, causing plaintiff to complain to Edward Cronk, the Company's Chairman and President, and to Norris Krall, the Company's Executive Vice-President. Plaintiff also complained that Smith "involved himself in matters not within his domain."
In early 1981, Cronk told plaintiff that he was fired because of negative statements plaintiff had made about Smith. Plaintiff alleges that Cronk had told him that an industrial psychologist, Walter Elliot, had recommended plaintiff's termination. When plaintiff told Cronk that he would stop criticizing Smith, Cronk told plaintiff that his termination was not irrevocable and that he could meet with the psychologist. Plaintiff did so, and alleges that he was informed by the psychologist that he did not recommend plaintiff's termination. Upon returning to work, plaintiff met Cronk and he withdrew plaintiff's termination.
In September 1981, plaintiff was removed from his position as Manufacturing Manager and replaced by Smith. Plaintiff became the Plant Service Manager, a new position created for plaintiff. His salary was not cut, but his responsibilities were greatly reduced and plaintiff viewed the move as a demotion. At a meeting with Mr. Cronk in November, 1981, Cronk told plaintiff that he was doing a good job in his new position and that the previous problem of his criticism of Smith had been resolved.
In 1981 the Company experienced a decline in profits. In 1982 the Company's profits continued to fall and the Company began to release employees. Plaintiff alleges that in August 1982, Cronk informed plaintiff that "the Company was going to have to get rid of some of its older employees and get a young, aggressive organization in place for when the economy turned around." Plaintiff then told Cronk that the Company would have to be careful not to violate the age discrimination laws.
On October 22, 1982, Cronk informed plaintiff that plaintiff would be released at the end of the day and that his position would be eliminated as part of a twenty-five percent reduction in force of salaried and clerical workers. Cronk told plaintiff that the Company was making the move because "business was bad." When plaintiff asked why he and not Smith was being released, Cronk replied that the Company desired to keep Smith because of his technical background and because he was known in the industry. Plaintiff was fifty-five years old at the time of his firing and subsequently filed this action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1983) (ADEA).
On April 16, 1984, defendant filed a motion for summary judgment and both parties filed briefs and supporting affidavits. In a deposition, plaintiff was asked whether he believed Cronk was attempting to take illegal action when he stated that the Company would have to eliminate older employees in favor of younger employees, and plaintiff responded:
I don't think he was; I don't think he intentionally did something that was illegal, no. In suggesting that these people be removed, he wasn't suggesting that we do it in an illegal fashion. He was, I think, fishing to find out how we could get them out of there without, without getting at cross purposes with the law.
Plaintiff presented affidavits of two other employees who voluntarily retired, but who stated that they felt animus from the Company because of their age. James M. Burt stated that although the Company never requested that he retire,
during the approximately two year period prior to retirement, the Company repeatedly took away my job duties until I had nothing of substance or importance to do. When my job finally became boring and meaningless I elected to retire. I believe that the Company stripped me of my duties so that ...