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November 25, 1992



The opinion of the court was delivered by: 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 ...

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