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LUBECK v. COMET DIE & ENGRAVING CO.

March 28, 1994

ROBERT J. LUBECK, Plaintiff,
v.
COMET DIE AND ENGRAVING COMPANY, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 Robert Lubeck ("Lubeck") has sued Comet Die and Engraving Company ("Comet"), claiming that it discharged him because of his age (65 at the time of his dismissal) in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. ยงยง 621-634. Comet has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, Comet's motion is granted and this action is dismissed with prejudice.

 Summary Judgment Standards

 Familiar Rule 56 principles impose on the movant the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to the nonmovant ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there). While courts are generally reluctant to grant summary judgment "in employment discrimination cases, where intent is inevitably the central issue" ( McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir. 1992)), summary judgment for Comet is nevertheless appropriate if the record reveals that no reasonable jury could conclude that Lubeck was fired because of his age ( Shager v. Upjohn Co., 913 F.2d 398, 399 (7th Cir. 1990)).

 Facts1

 Lubeck, born February 26, 1926 (D. 12(m) P 1), began his career at Comet in June 1943 as an apprentice engraver (Lubeck Dep. 17-18). Except for the 1944-46 period when he served in the United States Navy, he worked continuously for the firm until he was fired on December 31, 1991 at the age of 65 *fn2" (D. 12(m) PP 1, 18; Lubeck Dep. 15-17). In 1960 he had become foreman of the Engraving Department ("Department"), a position that he retained throughout his career with Comet (D. 12(m) P 3; Lubeck Dep. 22, 24, 48). *fn3" By 1991 Department comprised Lubeck and three individuals under his supervision: 42-year-old Richard Malchiodi ("Malchiodi"), who was hired on May 11, 1972, 36-year-old Richard Cummings ("Cummings"), who was hired on October 4, 1976, and Edgar Pestano ("Pestano"), *fn4" who was hired on April 8, 1991 and fired on June 26, 1992 (D. 12(m) PP 25-28; Lubeck Aff. P 10; Donlin Aff. Ex. A). *fn5"

 Department's engraving work was of two types: free-hand mill work and work on pantograph machines. In the first type the engraver follows a "layout" made on the metal, free-hand as it were, hence the name for that type of engraving. In the second type of work the engraver creates a die by using a "stencil or pattern" (P. 12(n)(2) P F; Lubeck Dep. 25).

 Throughout Lubeck's tenure at Comet, at least the vast bulk of his work was on free-hand milling machines. By 1991 he appears to have been the only employee at Comet who did so full-time (D. 12(m) PP 18, 45; Lubeck Dep. 22; Donlin Aff. PP 4, 34). *fn6" Virtually all of his time was spent in performing that function and in supervising the others in Department, a duty that required "maybe two hours a day" (D. 12(m) P 54; Lubeck Dep. 30, 40-41). While he had worked on pantograph machines "consistently" until 1970, *fn7" he worked on them just once or twice in 1990 and only occasionally in 1991 (D. 12(m) P 30; Lubeck Supp. Aff. P 9; Lubeck Dep. 30). Lubeck also said that he worked with cutter grinders (which were used with milling machines) "just about every day" but for "less than an hour" (Lubeck Dep. 33), that he operated surface grinders "not very often" in 1990 and 1991 (D. 12(m) P 34; Lubeck Dep. 31) and that he "possibly" used Bridgeport grinders in 1990 but not in 1991 (D. 12(m) P 34; Lubeck Dep. 32). During 1991 he operated no other machines in any other department (Lubeck Dep. 33-34).

 In comparison, Malchiodi operated both pantograph and deckl machines, Cummings worked on both pantograph and free-hand mill machines (in the latter respect he filled Lubeck's place when the latter was on vacation) and Pestano ran pantograph machines (D. 12(m) PP 26-28; Lubeck Dep. 28). Department itself had 3 free-hand milling and 17 pantograph machines (D. 12(m) P 56).

 Until his last few years at Comet, Lubeck's employment was apparently uneventful and to the satisfaction of both parties. *fn8" But starting in 1990 and continuing through 1991 Comet experienced a decline in the demand for free-hand mill work in particular (a decline that affected the entire engraving industry) and engraving work in general (D. 12(m) P 14; Lubeck Dep. 26). That downturn in business naturally generated less work for Comet's employees. That result is reflected in the "non-productive time" and overtime hours of the members of Department for 1990 and 1991, taken from Comet's payroll records and daily job cards (D. 12(m) PP 37-44; Donlin Aff. PP 6, 7; Donlin Aff. Exs. B, D-F): n9 Non-productive Time Overtime Hours Hours Percentage of Total Hours Worked 1990 1991 1990 1991 1990 1991 Lubeck 706.5 518.0 38.5% 35.6% n10 15.0 0.0 Malchiodi 73.6 199.6 3.8% 10.5% 147.8 92.9 Cummings 101.7 365.2 5.0% 18.1% 253.4 139.9 Pestano -- 272.2 -- -- -- -- n11

 Concerned with Lubeck's non-productive time, Donlin "reprimanded" him for his "lack of work" on one occasion in 1991 and told him that "he had to start running other machines or doing other things in the department" (D. 12(m) P 15; Donlin Dep. 17-19; Donlin Aff. P 29). Similarly, Pajak told Lubeck that there "wasn't enough free hand mill work to keep him busy" and that he should find other things to do and other machines to run (D. 12(m) P 17; Pajak Dep. 17-20). *fn12" However, Lubeck was never explicitly told that he would be fired if he did not find more work within the firm (P. 12(n)(2) P 0). Lubeck states that "I did my very best" "to find something else to do" (D. 12(m) P 15; Lubeck Dep. 49) However, his only evidence to that effect is his testimony about having seen if there were work that he could do in the "bench department" (Lubeck Dep. 49-50). As to his success on that front, he had "no idea" how much time he spent working there (Lubeck Dep. 50). Lubeck himself admits that in 1991 there were weeks where he was non-productive 4 to 5 hours of each day, and that he had more non-productive time than anyone else in Department (D. 12(m) PP 35, 36).

 Pantograph machines must be used to create patterns in Comet's engraving process (D. 12(m) P 52), and the company has about 50 such jobs a month (D. 12(m) P 57). *fn13" Comet's pantograph log, which lists all jobs done on such machines, does not list Lubeck as having operated the pantograph machine at all (D. 12(m) P 31; Donlin Aff. P 21), *fn14" and neither Donlin or Pajak ever saw Lubeck operate the pantograph machine (D. 12(m) PP 32, 33). Donlin says that he had wanted Lubeck to do more pantograph work to reduce both Lubeck's non-productive time and the overtime worked by other Department members (D. 12(m) P 58; Donlin Aff. P 32).

 In his defense Lubeck states that while he was given the "opportunity" to use other machines, the "work wasn't there" (Lubeck Dep. 62) and that he was never assigned specific tasks other than what he was already doing (P. 12(n)(2) P M). Additionally, he claims that Comet had an oral policy that supervisors such as himself first had to assign work to members of their departments, so that where there is a shortage of work the supervisor is naturally left without any (P. 12(n)(2) P H). *fn15"

 Nevertheless, in early November 1991 Lubeck was told that he would be fired because Comet was eliminating one full-time free-hand mill operator (D. 12(m) P 18; Lubeck Dep. 43). Comet never told Lubeck that he was being discriminated against because of his age (D. 12(m) P 59). *fn16" Lubeck was fired on December 31, 1991 (D. 12(m) P 18). Cummings has since become Department's foreman (D. 12(m) P 46). Lubeck's position has not been replaced by the hiring of a ...


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