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MONACO v. FUDDRUCKERS

April 17, 1992

RALPH MONACO, Plaintiff
v.
FUDDRUCKERS, INC., Defendant.



The opinion of the court was delivered by: JAMES B. MORAN

MEMORANDUM AND ORDER

 Plaintiff Ralph Monaco brings this action against defendant Fuddruckers, Inc., under the Age Discrimination in Employment Act of 1967, 29 U.S.C. ยง 621 et seq. (ADEA). Before us now is defendant's motion for summary judgment. For the reasons below, we grant defendant's motion.

 I. FACTS1

 Monaco was 38 years old when he started working at Fuddruckers in defendant's Matteson, Illinois restaurant on July 9, 1985. He was an hourly employee and worked as a butcher. He also periodically assisted as a butcher-trainer during the openings of other Fuddruckers restaurants. Monaco's job performance was always satisfactory, as evidenced by favorable reviews he received.

 Marc Mackiewicz, another Fuddrucker's employee, was promoted from assistant manager to manager of the Matteson restaurant effective June 8, 1987. Monaco had expressed to Mackiewicz an interest in being promoted to the position of shift supervisor, but never received such a promotion. While Monaco was working at Fuddruckers, however, others were promoted to shift supervisor. On February 9, 1987, Mary Dwyer was promoted to shift supervisor. In response to Monaco's questions, Mackiewicz told Monaco that he did not get the promotion because he was old. Effective March 6, 1987, Kirby Dorsey was promoted from cook to shift supervisor. *fn2" Dorsey was younger and had less experience with Fuddruckers than Monaco. Mackiewicz did not respond to Monaco's questions about why Dorsey, and not Monaco, had been promoted. On several occasions after this and before February 22, 1988, Mackiewicz told plaintiff he was old to work as a butcher and that he should resign.

 Sometime in late 1987, Fuddruckers began using boxed beef instead of hanging-beef forequarters. This change decreased the amount of butcher-time required to prepare the beef used in the Fuddruckers restaurants. On December 31, 1987, Fuddruckers cut Monaco's pay from $ 8.00 per hour to $ 5.75 per hour and also reduced by approximately half the number of hours per week he worked. Monaco felt he was entitled to two weeks of vacation per year but was told he would get only one week. He repeatedly requested a second week of vacation from Mackiewicz, who repeatedly denied his request because in June of 1987 Fuddruckers changed its vacation policy for all hourly employees. *fn3"

 In late December 1987 Monaco was asked to train Tom Bertram as a butcher. Bertram was 18 years old. There were no other butchers working in the Matteson restaurant at that time. When plaintiff asked why he had to train Bertram and why Bertram was getting more hours than Monaco, he was again told it was because he was old.

 Plaintiff prepared his own letter of recommendation for Mackiewicz to sign, which he did on February 20, 1988. The following Monday, February 22, 1988, Monaco once again asked Mackiewicz for his second week of vacation. When Mackiewicz again denied Monaco's request, Monaco walked off the job. He requested his job back two or three days after he quit, and was told he could not have it back. At the time he quit, Monaco was the oldest employee at the Matteson restaurant. *fn4"

 Plaintiff filed a charge of age discrimination with the Illinois Department of Human Rights on June 21, 1988. This charge was cross-filed with the Equal Employment Opportunity Commission.

 II. DISCUSSION

 Plaintiff claims that he was constructively discharged and subjected to many adverse changes in his working conditions for discriminatory reasons. He argues his refusal to resign caused Mackiewicz or Fuddruckers to take actions to force him to resign. These changes include decreases in wages, hours, and vacation time, as well as being passed over for promotions.

 The direct method and the indirect method are the two ways a plaintiff may establish age discrimination. The direct method is the mixed-motives analysis set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989). *fn5" This method is "appropriate when both legitimate and illegitimate considerations played a role in an adverse employment decision," Greanias v. Sears, Roebuck & Co., 774 F. Supp. 462, 471 (N.D. Ill. 1991), and when direct evidence of discrimination is available. McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir. 1991). The indirect method "is the familiar ping-pong approach dictated by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L.E.2d 668 (1973) as rearticulated in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093-94, 67 L.E.2d 207 (1981)." Greanias, 774 F. Supp. at 471. This method is appropriate in cases in which employment decisions were based on either legitimate or illegitimate considerations. Id. at 471. "The special virtue of the indirect method of proof is that it allows victims of age discrimination to prevail without presenting any evidence that age was a determining factor in the employer's motivation." La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409-10 (7th Cir. 1984) (emphasis in original). Monaco claims to satisfy both the direct and indirect requirements of proof. We will analyze the summary judgment motion under both of these methods.

 A. Direct Method

 The direct evidence plaintiff offers are the comments made by his manager, Mackiewicz, to the effect that Monaco was too old for the job and should resign. In other words, these comments are offered as direct evidence that the adverse conditions plaintiff faced (allegedly amounting to a constructive discharge) were motivated by age discrimination.

 To establish an ADEA violation, Monaco must demonstrate that he "suffered a materially adverse change in the terms or conditions of [his] employment because of [his] employer's discriminatory conduct." Spring v. Sheboygan Area School Dist., 865 F.2d 883, 885 (7th Cir. 1989) (emphasis in original). *fn6" Monaco's wages and hours were cut by a significant amount, and he alleges he was denied a week of his vacation. We cannot say as a matter of law that such employment decisions were not materially adverse ones. For purposes of this summary judgment motion, we view the ...


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