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NIELSEN v. REVCOR

January 3, 1991

BENNETT NIELSEN, Plaintiff,
v.
REVCOR, INC., Defendant



The opinion of the court was delivered by: ROSZKOWSKI

 STANLEY J. ROSZKOWSKI, UNITED STATES DISTRICT JUDGE

 Before the court is Defendant's motion for summary judgment. For the reasons set forth herein, the court denies Defendant's motion.

 BACKGROUND

 On June 21, 1989, Plaintiff Bennett Nielsen filed a complaint in this court against Defendant Revcor, Inc. Plaintiff alleges a cause of action under two federal statutes, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 - 634 (1988) [hereinafter ADEA] and the Employee Retirement Income Security Act, 29 U.S.C. §§ 1132, 1140 (1988) [hereinafter ERISA]. Plaintiff's complaint also alleges two pendent state claims, breach of employment contract and intentional infliction of emotional distress. This court has jurisdiction over this matter, because it presents a federal question, pursuant to 28 U.S.C. § 1331 (1988).

 The following facts are not in dispute, and are taken from Defendant's Rule 12(l) statement of material facts and Plaintiff's Rule 12(m) response to it. *fn1" Plaintiff is a white male, born August 17, 1924. Defendant is a corporation with principal offices in Carpentersville, Illinois. Defendant employs more than twenty employees and is therefore an employer within the purview of the ADEA. On March 5, 1984, Defendant hired Plaintiff, then age 59, as Manager of Marketing and Sales. In early 1986, Defendant promoted Plaintiff to Director of Sales and Marketing. In October 1986, Defendant promoted Plaintiff to Vice-President of Marketing and Sales.

 On August 5, 1988, Plaintiff was present at a weekly management meeting. Defendant's chairman, John Reichwein, Sr. (hereinafter John Sr.) was discussing a customer problem, and Plaintiff stated that John Sr. could help him prepare letters to customers. Plaintiff recalls that John Sr. then stated, "If I have to do your job for you, I don't need you. You're fired." Plaintiff answered, "Well, if I'm fired, I quit. You can go to hell." Four of the managers present at the meeting came to Plaintiff later that day and told him that they did not hear John Sr. say that Plaintiff was fired. Plaintiff told Defendant's President, John Reichwein, Jr. (hereinafter John Jr.), one of the managers who came to him, that if he wasn't fired, then he didn't quit.

 Plaintiff contends that on November 9, 1988, John Jr. gave Plaintiff two options: 1) to continue in his current job for sixty days, at which time Murzinski would review Plaintiff's position and salary; or 2) to work as a consultant to Defendant. Plaintiff stated that both options were unacceptable to him. John Jr. told Plaintiff that he would not be a member of the management group, and that he would not be entitled to the executive bonus plan. *fn2" He also told Plaintiff that the National Executive Compensation Survey would be the basis for determining Plaintiff's salary after sixty days. Plaintiff responded that under this survey, his salary would be approximately half of his current salary. John Jr. replied, "Well then that's what it will be, we can't afford to pay two people at vice president's salary level." Plaintiff's affidavit, Plaintiff's Rule 12(m) statement, filed Aug. 10, 1990, para. 15. Plaintiff contends, "Then I said if I'm through, what about a severance package. John said he never thought about it but he said, 'I'm sure something can be worked out.'" Id. P 13.

 The parties agree, as their Rule 12(l) and 12(m) statements reveal, that on November 10, 1988, Plaintiff received a letter from John Jr. offering him two options: 1) to work as Defendant's Marketing Consultant/Director, reporting to Murzinski, retaining his current salary and benefits, and after sixty days, Murzinski would review and determine Plaintiff's position and salary; and 2) to leave Defendant's employ immediately, receiving a severance package of salary and benefits. On November 14, 1990, Plaintiff left a message for John Jr. that he chose the second option.

 Plaintiff also presents evidence of Defendant's motive in his deposition testimony of January 3, 1990. Plaintiff states that John Sr. told him, "Well, I used to believe the old-timers were the best guys. But since we've gotten Larry Brigman, he's so much better than Jessie Dye was that I'm beginning to think that maybe I was wrong. . . . And besides, John likes to have the younger guys around, you know. He doesn't have too many guys to go to lunch with and play all the sports and all that stuff. So he kind of likes having those guys." Plaintiff's deposition, Jan. 3, 1990, Exhibit A to Defendant's Rule 12(l) statement, Vol. II, at 73. John Jr. testified at his deposition that he and John Sr. jointly decided to seek a replacement for Plaintiff sometime shortly after the management meeting on August 5, 1988. John Reichwein, Jr.'s deposition, Sept. 14, 1989, attached to Plaintiff's Rule 12(m) statement, filed Aug. 10, 1990, at 14.

 DISCUSSION

 This court will not grant any summary judgment motion unless all of the pleadings and supporting documents, if any, indicate 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir. 1976). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The district court, however, is not required to evaluate every conceivable inference that can be drawn from evidentiary matters, but only reasonable ones. Parker v. Federal Nat'l Mortgage Ass'n, 741 F.2d 975, 980 (7th Cir. 1984).

 The gist of Defendant's motion for summary judgment is that Plaintiff voluntarily resigned from Defendant's employ, and therefore Defendant did not constructively discharge Plaintiff. Defendant also argues that Plaintiff has not shown that Defendant made working conditions so ...


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