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CAMPBELL v. FASCO INDUS.

August 16, 1994

KENNETH N. CAMPBELL, Plaintiff,
v.
FASCO INDUSTRIES, INC., a corporation, Defendant.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

Before the court is the motion of defendant, Fasco Industries, Inc. ("Fasco"), for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the court grants defendant's motion.

 I. FACTUAL BACKGROUND1

 On February 9, 1993, plaintiff Kenneth Campbell filed his Complaint against defendant Fasco alleging that he was discharged in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Plaintiff is a fifty-eight year old former employee of Fasco's Motors Division, which manufactures a broad line of motors, blowers, fans, and other products for a variety of markets including heating, ventilating, air conditioning, compressors, pumps, appliances, machine tools, and aircraft. (Defendant's Statement of Material Facts as to Which There is No Genuine Issue ("Defendant's 12(m) Statement") at 1-2.). In 1980, Fasco was acquired by the Hawker Siddeley Group Public Limited Company of London, England ("Hawker Siddeley"). Hawker Siddeley was in turn acquired by a subsidiary of BTR plc, a British corporation, in 1991. (Id. at 2.)

 In or around 1978, Fasco purchased a material requirement planning ("MRP") integrated computer system known as the MRP II system, which used SMI software and Microdata hardware. The MRP II system was designed to track certain cost accounting and manufacturing functions for the Fasco Motors Division, thereby controlling inventory and maximizing cash flow. (Id. at 2-3.) During the first few years after it purchased the MRP II system, Fasco encountered some difficulty utilizing the system to its full potential. (Id. at 3.)

 To address the problems Fasco was experiencing with the MRP II system, John Locke, Hawker Siddeley Director of Management Resources in England, decided to create a Fasco Systems Team. In January 1982, Locke hired Dwight Gressel to work on the Systems Team. Gressel had previously worked for Fasco as a consultant and was given the position of Project Leader of Manufacturing on the Systems Team. Locke also hired Joe Bradley as Project Leader of Finance and Rick Green as Project Leader of Data Processing at this time. In March 1982, Locke hired Campbell to be the Systems Team Manager. Gressel was involved in this hiring decision. (Id. at 3.)

 A selection committee was formed to study and choose the replacement system, consisting of Campbell, Gressel, Green, and Dale Rose of the Systems Team, as well as systems coordinators from other departments at Fasco. The plant managers and Milo Evans, the Fasco executive responsible for the Systems Team, were also involved in the selection process. The selection committee reviewed various software and hardware vendors and ultimately chose what is known as the DEC/ASK system. The Systems Team began implementing the DEC/ASK system in Fasco's various plants. As of Campbell's termination on February 18, 1991, the DEC/ASK system had not yet been implemented at two of the Fasco plants. (Id. at 5-6.)

 From September 1987 through February 18, 1991, Campbell reported to Milo Evans. It was Evans's responsibility as Division Controller and later as Vice President of Finance to direct the efforts of the Systems Team and to ensure that the team met its objectives. In February 1990, Evans wrote a performance review of Campbell in which Evans gave Campbell an overall unacceptable job rating for 1989. On May 2, 1990, Evans prepared a written evaluation critical of Campbell's performance. *fn2" Campbell did, however, receive bonuses in 1989 and 1990. (Id. at 6-8.)

 In January and February 1991, Evans analyzed Fasco's current and projected financial condition and compiled his findings in two memoranda. In these memoranda, Evans observed that in 1990, the core business of Fasco Motors Division experienced a $ 16,941,000 decrease in its budget, and a $ 2,623,000 decrease in sales from 1989. In addition, in 1990, Fasco experienced a trading loss of $ 34,000 compared to a budgeted profit of $ 28,395,000. The decline continued in 1991, as Fasco's profits for January 1991 were $ 292,000, down from $ 1,052,000 in January 1990. Based on these statistics, Evans concluded that Fasco's profitability was declining in 1991, and recommended that cost reduction programs be implemented. (Id. at 8-9.)

 In February 1991, Roderic Karpen, President of Fasco, instituted a salary freeze and directed Evans to cut costs by eliminating three positions within the Systems Team. As of February 1991, only three of the nine members of the Systems Team were under the age of forty. Following Karpen's directive, Evans terminated two Systems Team members, Campbell (age 55) *fn3" and Warren Olson (age 41). As part of the reduction in force (RIF), Evans transferred Richard Clermont (age 54) from his position as computer programmer on the Systems Team to an open computer programming position in another department. (Id. at 9-10.)

 After Campbell was terminated, Evans selected Gressel to become the Acting Systems Team Manager. Gressel's primary responsibilities and duties did not significantly change. He continued to implement the DEC/ASK system at the Cassville, Missouri, plant his primary responsibility as Project Leader of Manufacturing. He did, however, take on the additional responsibilities of reporting to Evans and coordinating work assignments for the Systems Team. Gressel did not receive a pay increase, nor did he move into Campbell's old office. (Id. at 12-13.) In March 1992, Fasco determined it no longer needed a Systems Team and dismantled the group entirely. (Id. at 13.)

 II. LEGAL STANDARD

 Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, present no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). When reviewing the record on summary judgment, this court must draw all reasonable inferences in the light most favorable to the nonmovant. Anderson v. Stauffer Chemical Co. 965 F.2d 397, 400 (7th Cir. 1992). To avert summary judgment, however, plaintiff must do more than raise "'some metaphysical doubt as to the material facts.'" Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (footnote omitted)). Instead, he must present specific facts showing a genuine issue for trial. Celotex Corp., 477 U.S. at 324, 106 S. Ct. at 2553. A dispute about material fact is genuine only if the evidence presented is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Nevertheless, summary judgment must be approached with special caution in employment discrimination cases because intent is often a crucial issue, and intent is often not susceptible to resolution through summary judgment. See Beard, 840 F.2d at 410.

 III. ANALYSIS

 The ADEA prohibits an employer from discriminating against an employee on the basis of age. *fn4" To succeed on an age discrimination claim, a plaintiff must prove *fn5" that age was a determining factor in the employer's adverse employment decision. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir. 1992). Under this standard, a plaintiff need not prove that age was the sole motivating factor, but that he would not have suffered the adverse employment decision but for the employer's intent to discriminate on the basis of age. Id.

 There are two ways in which a plaintiff in an age discrimination suit may prove his claim. He "'may try to meet [his] burden head on by presenting direct or circumstantial evidence that age was the determining factor in [his] discharge. . . . Or, as is more common, [he] may utilize the indirect, burden-shifting method of proof for Title VII cases originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and later adapted to age discrimination claims under the ADEA.'" Weihaupt v. American Medical Ass'n, 874 F.2d 419, 424 (7th Cir. 1989) (quoting Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988)). Plaintiff employs both methods in an attempt to prove that age was a determining factor in his termination from Fasco.

 A. Direct Method

 "In a direct evidence case, plaintiff initially must prove 'through direct evidence that the employment decision at issue was based upon an impermissible factor.'" McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir. 1991) (quoting Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 568 (7th Cir. 1989)). Under the direct method of proof, plaintiff's evidence may be direct, circumstantial, or a combination of both. Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994); Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 450 (7th Cir. 1991) ("The first type of evidence in a discrimination suit is direct evidence that age was a determining factor, such as discriminatory statements uttered by the employer's decision-maker. The second type of evidence is circumstantial evidence that age was a determining factor, such as a statistical imbalance in the employer's work-force."). If plaintiff succeeds at proving that age was motivating factor in his termination, "'the defendant must respond by proving by a preponderance of the evidence that it would have made the same employment decision even if it had not taken the impermissible factor into account.'" McCarthy, 924 F.2d at 686 (quoting Randle, 876 F.2d at 569). Plaintiff proffers both direct and circumstantial evidence in an attempt to establish that age was a motivating factor in defendant's decision to terminate him. *fn6"

 1. Plaintiff was the oldest member of the Systems Team and was replaced by a younger employee

 Plaintiff offers no facts in support of his claim that he was replaced by another employee. It is undisputed that, after Campbell's termination, Dwight Gressel assumed the title of "Acting Systems Team Manager." However, a title is not determinative. Plaintiff must show that Gressel's new position is substantially the same as the position Campbell occupied at Fasco. See Monroe v. United Air Lines, Inc., 736 F.2d 394, 403 (7th Cir.), cert. denied, 470 U.S. 1004, 105 S. Ct. 1356, 84 L. Ed. 2d 378, 105 S. Ct. 1357 (1984). Defendant stated in its 12(m) Statement that Gressel's primary responsibilities and duties did not significantly change, that Gressel continued to implement the DEC/ASK system at the Cassville plant (his primary responsibility before Campbell's termination), and merely took on the additional responsibilities of reporting to Evans and coordinating work assignments for the Systems Team. (Defendant's 12(m) Statement at 12-13.) Plaintiff did not deny this statement of undisputed fact, asserting instead that "while Defendant claims that Gressel's duties did not change 'significantly', Defendant implicitly admits that Gressel's duties did change." (Plaintiff's Response to Defendant's Statement of Facts to Which it Believes There is No Dispute ("Plaintiff's 12(n) Statement") at 5.) Thus, the court accepts defendant's contention that Gressel did not replace plaintiff. *fn7"

  Nevertheless, even if the court assumes that Gressel did replace Campbell, this is not direct or circumstantial evidence of discrimination. See Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 658-59 (7th Cir. 1991) (neither plaintiff's age nor the fact that he was replaced by a much younger man is evidence of age discrimination). An employer does not violate the ADEA merely by discharging an employee whose age falls within the protected category and replacing him with a younger worker. La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1413 (7th Cir. 1984). Indeed, "because younger people often succeed to the jobs of older people for perfectly legitimate reasons, the mere fact that an older employee is replaced by a younger one does not permit an inference that the replacement was motivated by age discrimination.'" Monaco v. Fuddruckers, Inc., 1 F.3d 658, 661 (7th Cir. 1993) (quoting La Montagne, 750 F.2d at 1413). Plaintiff's evidence that he was the oldest member of the systems team and was replaced by a younger man, thus, merely places him within the protected class and establishes injury. See Daugherity v. Traylor Bros., Inc., 970 F.2d 348, 354 (7th Cir. 1992) (evidence that terminated employee was oldest laborer in his work group merely establishes prima facie case under McDonnell Douglas framework). Plaintiff's evidence therefore will be considered under the McDonnell Douglas method of proof, discussed below.

 2. Corroborating statements by Tom Beyer and Marv Haynes as to Fasco's policy of discriminating against older workers

 Plaintiff alleges that Tom Beyer, Head of Purchasing, and Marv Haynes, Head of Engineering-Production, made statements indicating that Fasco engaged in discriminatory practices. (See Plaintiff's Response to Defendant's Motion for Summary Judgment ("Plaintiff's Memorandum") at 3-4.) According to plaintiff, Beyer and Haynes stated that Fasco employees over the age of 50 or 55 (plaintiff didn't remember which) only received raises every three years, while employees under that age received annual raises. Defendant objects to the admission of these statements, arguing that they are inadmissible hearsay which cannot be considered here. (Reply of Fasco Industries, Inc. in Further Support of Its Motion for Summary Judgment at 13.) Plaintiff, however, claims these statements are not hearsay because of the management-level positions Beyer and Haynes held. (Plaintiff's Memorandum at 4.) The court assumes that plaintiff is attempting to have these statements admitted under Federal Rule of Evidence 801(d)(2)(D), as statements by agents against their employer.

 Rule 801(d)(2)(D) provides that "[a] statement is not hearsay if . . . the statement is offered against a party and is . . . a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of that relationship." Such statements are presumably reliable in the absence of cross-examination because an agent "who speaks on any matter within the scope of his agency or employment during the existence of that relationship, is unlikely to make statements damaging to his principal or employer unless those ...


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