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July 24, 1989

ALUMAX RECYCLING GROUP, INC., et al., Defendants

Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR


 Vincent Haynes ("Haynes") has sued Alumax Recycling Group, Inc. ("ARG"), its parent company Alumax, Inc. ("Alumax") and its grandparent Amax, Inc. ("Amax"), *fn1" asserting a violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. ยงยง 621-634. This Court denied defendants' initial motion to dismiss Haynes' Complaint on untimeliness grounds in Greanias v. Sears, Roebuck & Co., 697 F. Supp. 1025 (N.D. Ill. 1988) (combined opinion in two similar cases). *fn2" Now defendants have moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, the motion is granted and this action is dismissed.


 In March 1956 Haynes began working as an accounting clerk for Apex Smelting Company ("Apex"). In August 1962 ARG acquired Apex and, although Haynes then became an ARG employee, he continued his duties at the Apex plant in Chicago. Eventually he rose to the level of plant comptroller, but he later transferred to ARG's Des Plaines, Illinois office, where he performed general accounting duties until his termination in April 1987.

 In 1977 ARG owned five secondary aluminum facilities: in Long Beach, California; Chicago, Illinois; Checotah, Oklahoma; Cleveland, Ohio; and Bicknell, Indiana. By 1983, however, only the Cleveland and Bicknell facilities were functioning. In that year ARG acquired three aluminum can recycling centers ("can centers"): in Philadelphia, Pennsylvania; Arlington, Texas; and Houston, Texas. Although the Philadelphia center closed shortly after its acquisition, the other two can centers remain viable today.

 From 1984 until his termination Haynes reported to David Mitchell ("Mitchell"), who was originally ARG's corporate Comptroller, then its Vice President of Finance and Administration. At the time of Haynes' termination Milton Richmond ("Richmond"), who had known Haynes since their early days together at Apex, was ARG's President and general manager. Richmond and Bond Evans ("Evans"), Executive Vice President at Alumax, made the decision to terminate Haynes along with three other employees.

 In 1977 Haynes' duties primarily comprised all accounting procedures and related responsibilities for ARG's five plant operations and the Des Plaines office. When ARG acquired the can centers, Haynes originally performed similar duties for those operations. But in 1984 many of Haynes' duties as to the two remaining can centers (Arlington and Houston) began to be transferred to Texas at Mitchell's election. For that purpose ARG needed someone on site at the can centers to perform those duties. Coincidentally an Alumax subsidiary plant in nearby Rockwall, Texas was then closing, and Richmond obtained the names of candidates there to perform scrap trading and bookkeeping duties for the can centers. That resulted in Yvonda Nix ("Nix") *fn4" being hired from Rockwall because of her experience there in both scrap buying and accounting. Nix retained the title of Administrative Coordinator.

 By September 1986 Nix was carrying out most of the duties for the can centers. Des Plaines still handled the salaried payroll (as it did for all ARG branches), while Nix handled the hourly payroll. At that time the Cleveland facility had just been sold, and it was common knowledge that ARG was in the process of selling Bicknell as well.

 After the Bicknell sale ARG operated only the Texas can centers and the Des Plaines office, and thus there was little accounting work left to do in Des Plaines. Accordingly Richmond and Evans decided in December 1986 to implement a reduction in force ("RIF") at the Des Plaines office. Four individuals were terminated: Haynes (age 57), Tom Bastuba ("Bastuba") (age 39), Tom Manley ("Manley") (age 43) and Dennis Norton ("Norton") (age 36).

 On January 26, 1987 Haynes was notified that he was being terminated pursuant to the RIF effective April 30, 1987. Although ARG had once had a policy to provide two weeks of severance pay per year of service, after 1984 the policy in force provided for one week of pay per year (a change of which Haynes was unaware). Haynes received the one-week-per-year benefit plus accrued vacation, full medical and life insurance benefits throughout 1987, and a $ 2,000 bonus if he remained with ARG until April 30, 1987.

 Norton, although terminated at the same time as Haynes under the same policy, later formed a computer consulting business that has periodically been retained by ARG on an hourly basis. Bastuba received his $ 2,000 bonus, although he left before April 30, 1987 after finding a job with the help of ARG's outplacement service. Manley also received the same benefits package as Haynes -- but because ARG accommodated Manley as to some surgery, he actually received several additional weeks of what could be construed as severance pay.

 After Haynes was RIFed by ARG he received a job offer from Standard Alloys and began working there on June 1, 1987. That job lasted until Standard Alloys' bankruptcy in November 1987. After a brief period of unemployment, on May 1, 1988 Haynes began working at Allied Metal Company, a job he holds today.

 After Haynes left ARG, all of his duties were performed either by Nix in Texas or by Mitchell in Des Plaines. That situation had changed by early 1988, when Mitchell decided to leave ARG, although he did remain until January 1989, when he was terminated due to a further RIF. Since then Mitchell has been acting as an ARG consultant four days per month, during which time he continues to perform Haynes' former duties.

 Meanwhile, in Texas Nix began to devote herself full time to her scrap buying duties. ARG hired Doug Drerup, an under-30-year-old male, to take over her accounting duties.

 During his term at ARG, Haynes was present when Richmond told a group of people that Evans had bragged how it was simple and very easy to get rid of employees over age 45. Haynes also overheard Richmond say to Mitchell on at least two or three occasions that he was going to "get rid of" Haynes.

 ADEA Claim

 Haynes falls into the category of the age group (40 to 70 years old) protected by ADEA. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988) teaches:

Thus, a terminated plaintiff's ultimate burden in an age discrimination case is to prove that he was discharged because of his age. *fn5"

 Where (as here) a plaintiff offers no direct or circumstantial evidence that age was a determining factor in the discharge, he or she must turn to the indirect, burden-of-production-shifting method of proof originally established for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and later adapted to ADEA claims ( Ayala v. Mayfair Molded Products Corp., 831 F.2d 1314, 1318 (7th Cir. 1987)). *fn6"

 To establish a prima facie case in a RIF situation such as this one, a plaintiff must show ( Smith v. General Scanning, Inc., 876 F.2d 1315, 1318 (7th Cir. 1989), citing Oxman, 846 F.2d at 455):

(1) that he was within the protected age group; (2) that he was performing according to his employer's legitimate expectations; (3) that he was terminated; and (4) that others not in the protected class were treated more favorably.

 Both remaining steps in the McDonnell Douglas framework -- the shifting of the burden to the employer to produce a legitimate, nondiscriminatory reason for the discharge (step 2), followed by a burden-shift back to plaintiff to offer proof that such proffered reason is pretextual (step 3) -- are identical in a RIF case (Smith, 1318). Finally, as this Court said in Nellis v. Service Web Offset Corp., 695 F. Supp. 398, 401 (N.D. Ill. 1988) (emphasis in original):

And of course the teaching of Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981) is that the burden of persuasion of ...

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