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February 7, 1990

JAMES D. SUMMERS, Plaintiff,

George E. Marovich, United States District Judge.

The opinion of the court was delivered by: MAROVICH

GEORGE M. MAROVICH, United States District Judge.

 In this action, brought pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, plaintiff claims that defendant forced him into early retirement because of his advanced age. Before the court is defendant's motion for summary judgment. For the following reasons, defendant's motion is granted.


 Plaintiff, who had previously worked as an independent sales representative in this industry, joined defendant as a sales representative in 1973. Deposition of James D. Summers ("Summers Dep.") at 269-70. At the same time, plaintiff's long-time friend Benjamin Kotsher became a vice-president of defendant. Kotsher became president of defendant in 1981. Plaintiff worked as a commissioned sales representative until 1983. In June of 1983, he was promoted to the position of publisher of Swimming Pool Age, a magazine which had recently been acquired by defendant. Six months later, however, he was removed from this position. Summers Dep. at 332.

 After being removed as publisher of Swimming Pool Age, plaintiff was given the position of "Publisher of Industrial Group Directories." Exhibit 18 to Defendant's Motion for Summary Judgment. While the parties debate the adequacy of plaintiff's performance in this position, it is undisputed that Kotsher was dissatisfied with plaintiff's performance. In a memo dated October 1, 1984, Kotsher criticized the failure of plaintiff's sales representatives to sell directories along with magazines. Defendant's Exhibit 32. Plaintiff admits that Kotsher blamed him for this failure. Summers Dep. at 374. On November 8, 1984, Kotsher sent plaintiff another memo in which he criticized the performance of the directories and suggested that they should contain at least 200 pages of advertising. Defendant's Exhibit 35. Plaintiff contends that this 200 page quota was unrealistic. Summers Dep. at 378.

 After this November 8th memo, advertising sales increased sharply. In a memo dated December 6, 1984, Kotsher, noting the increase, expressed his displeasure at the fact that such selling activity did not appear to occur year-round. Defendant's Exhibit 38. Plaintiff admits that, from November of 1984 until plaintiff's retirement in August of 1986, Kotsher continually expressed his disappointment with plaintiff's performance. Summers Dep. at 385.

 In 1986 defendant came under pressure from its owners because of declining advertising sales and increased publication costs. Affidavit of Jerrold France at para. 11. Consequently, Kotsher became more concerned about plaintiff's performance as a directory publisher. On February 13, 1986, Kotsher sent plaintiff a memo expressing his disappointment at the poor advertising sales in the directories which were under plaintiff's supervision. Defendant's Exhibit 3. In May of 1986, Kotsher called plaintiff and asked him whether he would consider returning to the position of commissioned sales representative. Summers Dep. at 162. At this time, plaintiff understood that Kotsher was concerned about the poor performance of the directories under plaintiff's control. Summers Dep. at 407. Plaintiff declined the offer, explaining in a May 16, 1986 memo that he could not handle the demands of a sales position because his wife was very ill and because he had some health problems of his own. Defendant's Exhibit 4.

 Plaintiff concedes that, when Kotsher offered him the sales representative position, Kotsher never told plaintiff that he might be fired. Summers Dep. at 172. Plaintiff nonetheless inquired about defendant's severance pay policy in his memo of May 16th. Defendant's Exhibit 4. Kotsher responded to this memo on May 21, 1986, and emphasized that, in making the sales representative offer to plaintiff, he had not mentioned or even implied that plaintiff might be terminated. Defendant's Exhibit 5. Kotsher also noted that he wanted to find a suitable position for plaintiff within the company. Id. Plaintiff understood that Kotsher wanted him to remain with the company. Summers Dep. at 174-75.

 On May 16, 1988, plaintiff filed this lawsuit under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34. In it he claims that defendant forced him into early retirement because of his age, in violation of the ADEA. Defendant has put forth several arguments in support of its motion for summary judgment. First, defendant contends that plaintiff has produced no evidence from which a jury could reasonably conclude that defendant intended to discriminate on the basis of age. Secondly, defendant argues that, by offering plaintiff's declining sales as a legitimate reason for its actions, it shifted the burden of proof to plaintiff to demonstrate that the articulated reason was a mere pretext for discrimination. Defendant asserts that plaintiff has failed to meet this burden. Finally, defendant contends that plaintiff has no cause of action under the ADEA because he was not actually discharged. Plaintiff does not respond directly to any of these arguments, but contends, generally, that summary judgment is inappropriate because he has made out a prima facie case of age discrimination, and because material issues of fact remain as to whether he was performing his job adequately. Both sides have submitted briefs on the issue of what effect the recent Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), has on this case. We have considered all the materials filed by the parties, and we find that defendant's motion for summary judgment should be granted.


 A. Effect of Price Waterhouse v. ...

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