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STINNEFORD v. SPIEGEL INC.

February 14, 1994

PAUL A STINNEFORD, Plaintiffs,
v.
SPIEGEL INC. and OTTO VERSAND, a Limited Partnership, Defendants.



The opinion of the court was delivered by: JOHN A. NORDBERG

 Before the Court is Defendants' Motion for Summary Judgement.

 FACTS

 Defendant Spiegel Inc. ("Defendant") hired Plaintiff Paul Stinneford ("Plaintiff") as Assistant Vice President and Associate General Counsel on September 18, 1972. On January 1, 1978, Defendant promoted Plaintiff to the position of Vice President Secretary and General Counsel which Plaintiff held until his termination on April 15, 1988.

 Defendant submits affidavits from seven of its top corporate officers and various deposition excerpts all of which suggest that Plaintiff gradually lost the respect, trust and confidence of the Defendant's top corporate officers. The affidavits state that the officers found Plaintiff confrontational, argumentative and nonresponsive to their need for prompt legal advice. On at least three occasions, Defendant's top corporate officers requested that the Defendant's CEO remove Plaintiff from a particular deal since Plaintiff was allegedly hindering rather than helping the transaction. Many of the affidavits also mention Plaintiff's outrageous and inappropriate response to a policy, introduced at a meeting of Defendant's Management Committee, which proposed a limitation on smoking at company facilities.

 Count I of Plaintiff's Complaint alleges that Defendant discriminated against Plaintiff in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623 ("ADEA"), when the Defendant terminated Plaintiff because of Plaintiff's age. Count II alleges that Defendant retaliated against the Plaintiff in violation of the ADEA when the Defendant's Senior Vice President allegedly told Plaintiff that Plaintiff would forfeit some of his termination benefits if he complained of age discrimination. Finally, Plaintiff states in Count III that Defendant engaged in a pattern and practice of age discrimination when one of Defendant's officers supposedly announced a plan to remove elderly employees at a meeting in November 1986. *fn1"

 Under Rule 56(c), summary judgement shall be granted "if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgement as a matter of law." Fed. R. Civ. P. 56(c). Summary judgement shall be entered against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 321, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The showing made by the non-moving party must be more than merely colorable. Summary judgement is appropriate "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Summary judgement is proper even when issues of motive or intent are involved, if the plaintiff fails to establish any motive or intent which supports his position. Morgan v. Harris Trust and Savings Bank of Chicago, 867 F.2d 1023, 1026 (7th Cir. 1989). Mere conclusory assertions of discrimination are not sufficient to withstand a motion for summary judgement. Patterson v. General Motors Corp., 631 F.2d 476, 482 (7th Cir. 1980), cert. denied, 451 U.S. 914, 101 S. Ct. 1988, 68 L. Ed. 2d 304 (1981).

 Defendant argues that the Court should grant summary judgement in Defendant's favor for two reasons. First, Defendant claims that the ADEA should not apply to a corporation's hiring and firing of its in-house counsel. Second, Defendant asserts that even if the ADEA applies, Defendant has legitimate reasons to substantiate its decision to terminate the Plaintiff and Plaintiff has presented no proof to suggest that he was fired because of his age.

 Application of the ADEA

 In Rand v. CF Industries, Inc., 797 F. Supp. 643 (N.D.Ill. 1992), the Court held that the ADEA encompasses a company's treatment of its in-house counsel. Thus, the Rand court rejected the defendant-employer's argument that a client's legal right to dismiss his attorney prevails over federal discrimination statutes. Id. at 645.

 Interpreting the ADEA, the Rand court relied on both the plain language and the framework of the statute. Id. This Court agrees with the Rand court that the ADEA's statutory definitions of "employer" and "employee" are broad and should be interpreted liberally. *fn2" Id. This Court concurs further that the statutory structure of the ADEA suggests that in-house counsel are not excluded from the statute's scope. Certain government officials and certain bona fide executives are excluded from coverage. See, 29 U.S.C. §§ 630(f), 631(c)(1). However, no exemption exists for in-house counsel. Thus, the statutory structure undercuts the contention that such an exemption exists. Id. at 645.

 Finally, the legislative history of the ADEA supports the position that in-house counsel are covered by the statute's protections. The House Report accompanying the "bona fide executive" exemption, § 631(c)(1), states that the exemption extends to "heads of major departments or divisions," such as "finance, marketing, legal, production and manufacturing." 1978 U.S. Code Congressional and Administrative News 504 at 531, H.R. Report. No. 95-950. As the language confines the exemption to heads of major departments, the language implies that members of the corporate legal staff, such as in-house counsel, are covered by the statute.

 In Whittlesey, the Second Circuit held that the ADEA did protect the employer's chief labor counsel because the chief labor counsel was "primarily an attorney doing legal work, giving legal advice, giving attention to the effect of statutes, regulations and administrative action upon company practices." 742 F.2d at 726. The Whittlesey Court noted further that while the chief labor counsel had "some administrative or executive responsibility over the functioning of the small labor law section, his supervisory duties were quite minimal and occupied a very small portion of his time." Id. The Second Circuit further affirmed the district court's finding that the chief labor counsel was ...


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