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HUDAK v. JEPSEN OF ILLINOIS

May 16, 1990

PAUL HUDAK, Plaintiff,
v.
JEPSEN OF ILLINOIS, INC., Defendant



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Paul Hudak has filed this action against Jepsen of Illinois, Inc. ("Jepsen"), his former employer. Hudak alleges that Jepsen has discriminated against him on the basis of his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. ยง 621 et seq. Jepsen has moved for summary judgment and for sanctions under Rule 11. For the reasons given below, we deny both of these motions.

 Background

 Hudak worked in Jepsen's warehouse from October 23, 1973 until the fall of 1987, when Jepsen terminated his employment. While Hudak's formal title was "Warehouse Supervisor," he performed functions characteristic of both manager and regular employee. Jepsen contends that it discharged Hudak during the course of on overall reduction in force. Jepsen incurred losses of over $ 500,000 in 1987, and believed this reduction was essential to improve its financial posture.

 According to Jepsen, it was necessary to discharge Hudak in order to honor its contract with its employees' union, Teamsters Local 705. The collective bargaining agreement in force at the time specified that only union members could perform certain duties in the warehouse. When Jepsen determined that it had to discharge one its two warehouse employees, it was forced to fire Hudak, who was not a union member, rather than Vince Owen, who belonged to the union. According to Jepsen, Hudak was given several opportunities to join the union, but declined.

 Hudak contends that Jepsen's union contract was not the actual reason for his discharge. Hudak, who was 61 years old at the time he was discharged, claims that Jepsen fired him because of his age. Hudak argues that the only reason that he did not join the union is that Jepsen told him not to join because he was a "management employee."

 Standard of Review

 "A motion for summary judgment should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Checkers, Simon & Rosner v. Lurie Corp., 864 F.2d 1338 (7th Cir. 1989) (citation omitted). The moving party bears the burden of establishing the absence of any disputed facts. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If, however, the nonmoving party bears the burden of proving an issue at trial, it also bears the burden of presenting sufficient facts on summary judgment from which a trier of fact could find in its favor, and the moving party need only "[point] out to the District Court . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 2554; Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986); Richardson v. Penfold, 839 F.2d 392, 394 (7th Cir. 1988).

 Discussion

 Jepsen claims that it is entitled to summary judgment for two reasons. First, it asserts that Hudak has admitted during the course of discovery that he was not fired because of his age. Second, Jepsen contends that Hudak has failed to produce facts that are legally sufficient to support his claim.

 Jepsen argues that Hudak has not produced facts sufficient to establish a prima facie case of age discrimination. Moreover, it argues that even if Hudak has met the prima facie case requirement, he has failed to rebut Jepsen's legitimate nondiscriminatory justification for its action. However, we find that neither of these arguments entitles Jepsen to summary judgment.

 Despite a rather complex body of law involving shifting burdens and different tiers of liability, an ADEA plaintiff cannot prevail unless she can demonstrate that the defendant intentionally discriminated against her because of her age. Burlew v. Eaton Corp., 869 F.2d 1063, 1067 (7th Cir. 1989). Attempting to capitalize on this principle, Jepsen contends that we should grant summary judgment in its favor because Hudak has admitted that it did not discriminate against him. Jepsen contends that this admission is contained in the following testimony from Hudak's deposition.

 
Q. Do you have any reason, Mr. Hudak, to believe that your age had anything to do ...

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