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November 25, 1992



The opinion of the court was delivered by: SUZANNE B. CONLON

Judge Suzanne B. Conlon


 Plaintiff H. Robert Kotarski ("Kotarski") sues defendant Binks Manufacturing Company ("Binks") for alleged age discrimination in a termination decision under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Binks moves for summary judgment.


 Kotarski claims that Binks discriminated against him on the basis of his age when the company fired him at the age of sixty-six after forty-four years of employment. Kotarski began working for Binks, a spray finishing and coating application equipment manufacturer and distributor, in 1947. Kotarski Aff., 12(n) Ex. B P 2. Except for brief intervals before 1953 (when Kotarski was laid off, and when he served in the armed forces), Kotarski worked continuously for Binks until his termination in May 1991. Id. Since 1975, Kotarski had been the inspection department supervisor for Binks' Franklin Park, Illinois plant. Roche Aff. P 4.

 Beginning in April 1990, Burke B. Roche, president and CEO of Binks, initiated cost-cutting measures. Roche, responding to a hostile takeover attempt and bad economic conditions, urged employees to cut expenses and increase productivity. Roche Aff. P 21. In a series of memoranda to all managers and department heads, Roche eliminated unauthorized overtime, urged managers to insure their workers were maximizing their productivity, limited sales expenses, and solicited other ideas. Id. & Ex. A. As part of these cost-cutting measures, Roche decided to consolidate Kotarski's position as inspection supervisor with that of toolroom supervisor. Id. P 19.

 Meanwhile, Roche received numerous informal complaints about Kotarski's work. Id. PP 8-15. Specifically, Kotarski's supervisor complained to Roche and suggested that the inspection department needed a change. Strack Aff. PP 1-8. No formal complaints were ever recorded against Kotarski: He was never disciplined or placed on probation. Kotarski Aff., 12(n) Ex. B P 6. But Kotarski knew that some of the other foremen at Binks had complaints about his work. *fn1" Kotarski 7/1/92 Depo. at 47. Kotarski was one of just two foremen who did not receive a pay raise after 1987. *fn2" Unschuld Aff. P 4.

 Roche fired Kotarski on May 17, 1991. As was his custom, Roche called Kotarski into his office and told him his employment was terminated without notice or warning. Roche Aff. P 18. Roche told Kotarski that he had been with Binks "long enough" and that he wanted to "make some changes." Kotarski Aff., 12(n) P 3. Roche told Kotarski he was fired and told him to leave the premises immediately. Id. That same day, Binks also let go the only other foreman who had not received a raise since 1987. Unschuld Aff. P 4. Carl Brewer, the 44 year old foreman of the toolroom, took over Kotarski's inspection supervisor duties while continuing to supervise the toolroom. Roche Aff. P 19.

 There is no other evidence -- or even an allegation -- that Binks systematically discriminated against its employees on the basis of age, or that Kotarski was discriminated against because of his age at any time before his termination. Binks has no mandatory age retirement policy. Roche Aff. P 7. All but one of Binks' corporate officers and the company's entire board of directors are more than fifty-five years old. Id. Roche, the only person with authority to fire salaried Binks employees, is seventy-eight years old. Id. P 2. On the date Kotarski was fired, there were nineteen other supervisors: sixteen were over 40, twelve were over 50, and two were over 60. Id. P 21. Four foremen recently fired by Binks were aged 39, 41, 44 and 55. Id. P 18.


 Binks moves for summary judgment under Fed. R. Civ. P. 56. A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Where the nonmovant fails to make a sufficient showing on an essential element of his case, on which he would bear the burden of proof at trial, summary judgment is proper. Id. at 322-23. Once a moving party has met its burden, the nonmoving party must go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). Where the entire record could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Elec. Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 Kotarski claims that Binks violated the ADEA when it fired him. Kotarski argues that he never knew he had performance problems until after he was fired, and that Roche fired him because of his age. The ADEA makes it unlawful for an employer to discharge a person because of her age when she is at least 40 years of age. 29 U.S.C. §§ 623(a)(1), 631(a) (1992). An ADEA plaintiff's ultimate burden is to show she was discharged because of her age. A terminated employee may make out a case under the ADEA in two ways: directly or by shifting the burden of production. First, the plaintiff may prove her employer discriminated against her by showing that her age was the determining factor in her discharge. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988). She may use either direct or circumstantial evidence to make that showing. Id.

 Second, an ADEA plaintiff may prove discrimination by the burden-shifting method adopted by the Supreme Court's Title VII decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). A discharged plaintiff establishes a prima facie case of age discrimination by showing (1) that she was in the protected age group; (2) that she was performing according to her employer's legitimate expectations; (3) that she was terminated; and (4) that a replacement was sought, or one was found outside the protected class. Smith v. General Scanning, Inc., 876 F.2d 1315, 1318 (7th Cir. 1989). A plaintiff who makes this showing raises a rebuttable presumption of discrimination and shifts the burden of production onto the defendant, who must articulate legitimate and nondiscriminatory reasons for the discharge. Id., Oxman, 846 F.2d at 453. Once the defendant makes the showing of a nondiscriminatory reason, the burden of production shifts back to the plaintiff to show the employer's proffered reasons are a pretext for discrimination. Smith, 876 F.2d at 1319. A plaintiff establishes pretext by showing that the employer's reasons have no basis in fact or, if the employer's reasons have a basis in fact, by showing that the stated reasons were not the factors actually motivating the discharge, or that they were insufficient to motivate the discharge. Id.

 Kotarski fails to show discrimination by the direct method. Kotarski does not urge this method in his papers, but even if he did, there is not a scintilla of direct or circumstantial evidence in the record suggesting that age was the determining factor in Kotarski's discharge. *fn3" The overwhelming circumstantial evidence is to the contrary: The majority of officers at Binks are in the protected group; layoffs have occurred across several age groups (including employees outside the protected group); and the person who fired Kotarski is in the protected group.

 Kotarski also fails to make out a prima facie case under the burden shifting method. Of course, Kotarski shows the first and third elements because he was in the protected group, and he was fired. But Kotarski has not raised a material issue of fact as to either the second or fourth element.

 The second element of the burden shifting method requires Kotarski to show that he was performing to Binks' legitimate expectations. Binks offers the affidavits of Kotarski's supervisors as proof that Kotarski was not performing up to expectations. See Strack Aff. P 7 ("Kotarski was not cooperating with the foremen [and] quality was suffering and customers were upset"); Unschuld Aff. P 4 ("Kotarski's performance had been declining for several years prior to his termination"); Roche Aff. PP 6, 8-15 (Kotarski "had become increasingly unproductive"; detailing complaints by other Binks employees about his performance). Kotarski does not claim that he was actually performing up to expectations. Although he says he was never notified that his performance was unsatisfactory, even Kotarski's accounts of his knowledge concerning his unsatisfactory job performance are contradictory. *fn4" Kotarski does point to selected deposition excerpts by coworkers and subordinates and manages to establish that he did have areas of competence. But each of these depositions suffers from one or more fundamental defects, and none of them establish, from a supervisor's point of view, that Kotarski's overall performance was satisfactory. Cf. Williams v. Williams Electronics, Inc., 856 F.2d 920, 924 (7th

 Cir. 1988). Finally, even if his inspection department performance were satisfactory, that position was eliminated. Kotarski would need to demonstrate that he was qualified for the new combined position of toolroom / inspection supervisor. This he has not done. Keeping in mind that Kotarski would bear the burden of persuasion on this element at trial and that he fails to come forward with any evidence of satisfactory overall performance, Kotarski fails to create a disputed issue of material fact on this issue to defeat summary judgment.

 Binks is also entitled to summary judgment because Kotarski fails to show the fourth element -- that a replacement was sought, or that he was replaced by a person younger than the protected class. Kotarski's job was eliminated, and his inspection supervisor duties were assumed by the incumbent toolshop supervisor, Carl Brewer. This disposition of Kotarski's duties cannot satisfy the fourth burden shifting element. The utility of the burden shifting method is not that it exhaustively defines when there has been discrimination. Rather, the burden shifting method is a good proxy for direct evidence only because it eliminates the most common nondiscriminatory reasons for the plaintiff's discharge. Texas Dept. of Comm'y Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Thus, it only has value because the acts, "if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. When a plaintiff's position is completely eliminated for verified economic reasons and not filled by another employee, showing the other elements does not raise the inference because there is no logical nexus between the actions and discrimination.

 Moreover, Kotarski's duties were given to someone else in the protected class. Some circuits recognize that a plaintiff may shift the burden even when his position is filled by another in the protected class. See, e.g., Pace v. Southern Ry. Sys., 701 F.2d 1383, 1386-88 (11th Cir.) (certain reduction-in-force situations do not require out-of-class replacement; plaintiff may also show nexus by pattern of discrimination statistics), cert. denied, 464 U.S. 1018, 78 L. Ed. 2d 724, 104 S. Ct. 549 (1983). See also Hillebrand v. M-Tron Indust., Inc., 827 F.2d 363, 366 n.6 (8th Cir. 1987) (citing cases and stating elimination of requirement as black letter rule), cert. denied, 488 U.S. 1004, 109 S. Ct. 782, 102 L. Ed. 2d 774 (1989). But there is no comparable precedent in the Seventh Circuit. See, e.g., Holmberg v. Baxter Healthcare Corp., 901 F.2d 1387, 1390 (7th Cir. 1990). The view that the burden shifting framework needs flexibility to take account of the vast subtleties of ADEA cases is well-taken. The burden shifting framework has no per se legal significance. See Pace, supra. Here, however, there is no substitute for the out-of-class showing. Kotarski has not offered statistics or shown a pattern of downsizing that could ultimately benefit a person not a member of the class. He has failed to establish a logical nexus between Binks' acts and any discrimination.

 Finally, even if Kotarski had managed to shift the burden, Binks meets its burden of production. Binks points out that the elimination of the inspection supervisor position was part of a cost-cutting program. Kotarski questions the breadth and formality of the program, but he does not dispute that it existed. The elimination of a position in order to consolidate duties with another position for efficiency reasons is a legitimate nondiscriminatory reason for discharge. Kotarski does not contend that the cost-cutting program -- or the consolidation of the two positions -- was a pretext.

 Kotarski attempts to raise a factual dispute regarding pretext. Kotarski's strategy is to point out that Binks' evidence could be better in several areas. For example, Kotarski points out that the cost-cutting program evidenced by memoranda was not extensive or formal; that Binks had offered him an income security agreement in the event of a corporate takeover; and that some Binks employees admitted in deposition that Kotarski had areas of competence. Kotarski also makes ad hominem attacks on several of the Binks' affidavits and argues that it is not credible to him that he was performing poorly because no employee of Binks ever put him on notice.

 Kotarski's argument is misguided on two levels. In the first place, the question of pretext does not become relevant until Kotarski has made a prima facie showing under the burden-shifting method and Binks has articulated a nondiscriminatory reason for discharge. Smith, supra. Kotarski does not effectively argue that he has successfully shifted the burden -- he jumps right into the question of pretext. But even if pretext were at issue, Kotarski's criticisms do not create a genuine issue of fact. Binks' affidavits establish that Binks was involved in a cost-cutting program, that Kotarski's supervisors felt he was performing poorly, and that his position as inspection foreman was eliminated. It takes contrary evidence, not qualitative criticisms, to create a dispute. Fed. R. Civ. P. 56(e).


 Binks' motion for summary judgment is granted. Judgment is entered for defendant Binks Manufacturing Company and against plaintiff H. Robert Kotarski.


 Suzanne B. Conlon

 United States District Judge

 November 25, 1992

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