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COLLINS v. OUTBOARD MARINE CORP.

August 14, 1992

MICHAEL COLLINS, Plaintiff,
v.
OUTBOARD MARINE CORPORATION, Defendant.



The opinion of the court was delivered by: HARRY D. LEINENWEBER

 MEMORANDUM OPINION AND ORDER

 Plaintiff, Michael Collins ("Collins"), has brought this action against defendant, Outboard Marine Corporation ("OMC"), pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., alleging that he was terminated as vice president of OMC's European Operations because of his age. The parties are now before the court on defendant's motion for summary judgment.

 BACKGROUND

 Plaintiff was involuntarily retired from his position with International Harvester Company ("Harvester") in 1987, where he had held a variety of sales, marketing and managerial positions. After his retirement from Harvester, plaintiff briefly operated his own consulting firm. During that period, plaintiff was in contact with Dennis Jacobson ("Jacobson"), a former Harvester employee working at OMC. Those contacts eventually resulted in OMC hiring plaintiff as a $ 500.00 per day consultant on February 23, 1988.

 Plaintiff provided consulting services for OMC in Australia and Europe throughout 1988. By September 29, 1988, it was decided that plaintiff would become Managing Director of OMC European Subsidiaries ("OMC Europe"). Plaintiff officially assumed that position on November 1, 1988, and reported directly to Jacobson.

 By mid-1989, Jacobson expressed his disappointment over the performance of OMC Europe. As a result, plaintiff and Owe Jansson, the past head of OMC Europe, drafted a proposed reorganization plan (the "plan"). Under the plan, OMC Europe was restructured by creating two marketing divisions reporting directly to the president of OMC Europe, one for boats (the Boat Division) and the other for engines (the Marine Power Division).

 The original expectation was that plaintiff would be made president of the newly reorganized OMC Europe operation. Jacobson, however, concluded that plaintiff lacked the necessary skills for the top job, and instead selected OMC Comptroller, James Maurice, a man in his mid-50's, to head the operation on an interim basis. Meanwhile, plaintiff assumed responsibility for the Marine Power Division. George Lamy ("Lamy"), age 49, was plaintiff's counterpart as vice president of the Boat Division.

 At about the same time, Jacobson began looking for a new president for OMC Europe. In June, 1990, Jacques Germay ("Germay") was selected for the position. Germay was told by Jacobson to turn OMC's Europe operations around even if it required another reorganization. After evaluating operations, Germay decided to again restructure OMC Europe, this time abandoning the recently established divisional structure and cutting staff. As a result, both plaintiff's and Lamy's positions were eliminated, and replaced by a new corporate marketing vice president position responsible for all product lines. Germay decided to retain Lamy for that position, and plaintiff was told of his termination on November 21, 1990. According to plaintiff, Germay told him that he was selected for termination because he was "retired, on pension and older" than Lamy. Germay denies having referred to plaintiff's age in relationship to Lamy. At the time of his termination, plaintiff was 60 years old.

 On November 23, 1990, plaintiff met with OMC Europe Counsel, Andre Decraene ("Decraene"). Plaintiff asked Decraene to prepare an initial draft of a separation agreement. During the next several weeks, plaintiff and Decraene met to negotiate further the terms of the separation. On December 10, 1990, the final separation agreement ("agreement") was executed by the parties. It contained the following provision:

 Parties acknowledge that this agreement is a settlement agreement. Mr. Collins and OMC, including any and all subsidiaries and affiliates, therefore renounce to any and all claims, rights, or court actions, which they might have, invoke, avail themselves of, or initiate against each other arising out of the performance or the termination of their employment relationship, without prejudice to the enforcement of this agreement.

 Def. ex.18, P 10. In addition, plaintiff sought and obtained a provision which stated:

 It is recognized by OMC that Mr. Collins performed his assigned duties in a competent, diligent, professional and honest manner. Further, that the termination of the employment agreement is the consequence of a reorganization which resulted in the elimination of his position as Vice President Marine Power Division.

 Def. ex.18, P 11. Under the agreement, plaintiff received six months severance pay, totaling $ 51,650.

 On January 25, 1991, Decraene approached plaintiff and asked him to sign a supplemental agreement containing an explicit release of claims under the ADEA and other employment laws. Plaintiff told Decraene that he had already signed an agreement and refused to sign the supplemental agreement. Decraene again approached plaintiff on January 28, 1991, explaining that plaintiff might be able to sue OMC if he did not sign the supplemental agreement. Plaintiff responded that it was not his style to sue anybody and that he intended to live up to the agreement as executed. On January 29, 1991, plaintiff wrote Decraene to complain about the threatening tone which plaintiff felt Decraene had used during their meeting, and again questioned the need for a supplemental agreement.

 After returning to the United States, plaintiff met with F.J. Short ("Short"), OMC's Vice President of Employee Relations. Plaintiff reiterated his intent to honor the December 10 agreement, and Short explained that the supplemental agreement OMC now sought was required under a recent amendment to ...


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