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January 14, 1991

ENEAS D'AQUINO, Plaintiff,

The opinion of the court was delivered by: BUA



 D'Aquino's relationship with Citicorp/Diner's Club Inc. has been a relatively long and uneventful one. D'Aquino began working for what was then Diner's Club, now Citicorp/Diner's Club ("Citicorp"), in 1971. He was 46 years old. Throughout the early portion of his career, in 1973, 1975, 1980, D'Aquino consistently received average ratings in his informal reviews. Along with the reviews came yearly salary increases. These increases were generally within the 2-4% range. In the late 1970's, D'Aquino was promoted to director of Sales Administration. When Diner's Club was acquired by Citicorp in 1981, D'Aquino continued in essentially the same position. (D'Aquino Deposition at 20.) His salary also remained constant. (Id. at 21-22.) The difference was that D'Aquino now reported to supervisors.

 Citicorp reinstituted employee reviews in 1983. D'Aquino received a favorable review in 1983, accompanied by a salary increase. In 1985, D'Aquino turned 60 years of age. Around the time of his birthday, D'Aquino became a financial manager. A few months later, he returned to his previous position because a vice president felt that D'Aquino was not suitable for the financial manager position. Upon resuming his former position, D'Aquino worked mainly on project tasks. His next review occurred in 1986. That review rated D'Aquino's performance as marginal. As a result, D'Aquino was not given a raise during 1985-1986. D'Aquino challenged the evaluation and submitted written rebuttals. In his next review, D'Aquino was rated average. He received a salary increase for that year, 1987, and a retroactive raise for 1985. D'Aquino characterizes these raises as minimum. (Id. at 42.) During this time, D'Aquino remained in the same grade-level position. (Id.)

 As a result of D'Aquino's continued challenge to his 1986 review, D'Aquino sat down with a senior financial officer to discuss his options within the company. One of the choices available to D'Aquino was an optional separation agreement. D'Aquino considered the option, but eventually refused it when a compromise could not be reached on a compensation amount.

 In 1988, D'Aquino indicated interest in a position opening for financial manager of membership acquisitions. However, he never actually applied for the job. (Id. at 77.) D'Aquino also expressed interest in two vice president jobs -- product development and promotions. He applied for the product development position, but was not given the job. His 1988 and 1989 appraisals again rated his performance as average.

 In 1990, D'Aquino filed this suit. His complaint alleges age discrimination in a number of areas. D'Aquino claims that, since he turned 60 years of age, he has been (1) given unfavorable evaluations; (2) assigned to difficult situations; (3) given minimal salary increases; (4) prevented from receiving promotions; and (5) presented with a separation agreement, all on account of his age. He alleges that these conditions are in violation of 29 U.S.C. § 623(a)(1), which makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." Citicorp denies these claims and moves for summary judgment.


 "The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Fed. R. Civ. P. 56, Notes of Advisory Committee on Rules. To do so, the court must determine whether any genuine issue of material fact exists and whether a decision can be reached as a matter of law. Fed. R. Civ. P. 56(c).

 In an age discrimination suit, plaintiff bears the burden at all times of proving that defendant engaged in discrimination based upon age. D'Aquino must prove that he "suffered a materially adverse change in the terms or conditions of [his] employment . . ." ( Spring v. Sheboygan Area School Dist., 865 F.2d 883, 885 (7th Cir. 1989)) and that he would not have received such adverse treatment but for his age. Grohs v. Gold Bond Bldg. Products, Div. of Nat'l Gypsum Co., 859 F.2d 1283, 1285 (7th Cir. 1988), cert. denied, 490 U.S. 1036, 109 S. Ct. 1934, 104 L. Ed. 2d 405 (1989). Direct or circumstantial evidence will sustain this burden of proof. As D'Aquino has not presented the court with direct evidence, he must rely on circumstantial evidence. First, D'Aquino must establish a prima facie case of age discrimination. Accordingly, he must show (1) that he belongs to a protected class (age 40 or over); (2) that his job performance was sufficient to meet the legitimate expectations of Citicorp; (3) that he received adverse treatment in spite of his performance; and (4) that Citicorp sought a younger person as a replacement for him. Matthews v. Allis-Chalmers, 769 F.2d 1215, 1217 (7th Cir. 1985). If D'Aquino is able to establish a prima facie case, the burden then shifts to Citicorp to set forth a legitimate, non-discriminatory reason for the adverse treatment. Id. Should Citicorp articulate such a reason, D'Aquino must prove that the employer's reason was purely pretextual. Id.

 An examination of the facts and law leads the court to conclude that D'Aquino would not succeed if his case were brought before a jury. In fact, for the majority of his claims, D'Aquino does not even succeed in establishing a prima facie case. While D'Aquino can satisfactorily show the first two elements in such an analysis, he falls short in establishing the third ...

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