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RITTMEYER v. ADVANCE BANCORP

November 2, 1994

CARL RITTMEYER, Plaintiff,
v.
ADVANCE BANCORP, INC., a Delaware corporation, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Carl Rittmeyer brings this one count complaint against defendant Advance Bancorp, Inc. ("Bancorp"), alleging violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 28 U.S.C. §§ 621-634. Presently before us is defendant's motion to dismiss or in the alternative for summary judgment. *fn1" For the reasons set forth below, the motion is granted.

 I. Background

 Beginning in 1986, plaintiff Rittmeyer was the Controller of Concordia Federal Bank for Savings ("Concordia"). Two years after his coming on board, Concordia was declared insolvent and taken over by the Resolution Trust Corporation ("RTC"). Rittmeyer was retained as Controller of Concordia during the period of RTC control from 1988 to 1990. In May 1990, certain assets and liabilities of Concordia were purchased by Advance Bank, s.b. ("AB"), a 100%-owned subsidiary of Bancorp. At this time Rittmeyer was asked by James A. Fitch, President of Bancorp and then-acting President of AB, to stay on as Controller of AB for the same salary as he was receiving at Concordia ($ 58,000 per year). Plaintiff accepted this offer, and worked for AB for almost two years.

 In January 1992, James Fitch, as President of Bancorp, hired Rittmeyer to be Treasurer and Controller of Bancorp at the same rate of compensation that he was receiving at AB. *fn2" In May of the following year, Rittmeyer inquired with James Fitch about the possibility of a raise and advancement--specifically, promotion to President of Bancorp. The parties disagree as to what was actually said at this and subsequent meetings, *fn3" but there is no dispute that plaintiff's request for a raise and a promotion was rejected. On September 20, 1993, Rittmeyer--who was 51 years of age--met with Fitch and Bancorp's Human Resource Director, Judy Rita. At this meeting Fitch told Rittmeyer that he was being terminated as Controller of Bancorp but would remain on the payroll until the end of the month. On October 22, 1993, plaintiff filed a charge of age discrimination with the Illinois Department of Human Rights. Prior to any disposition of this charge, plaintiff filed the instant action on January 11, 1994.

 At all relevant times, Bancorp--a bank holding corporation-- owned 100% of the stock of AB and South Central Bank ("SCB"). Bancorp's only office is in Homewood, Illinois, and it employed 12 and 10 employees in 1992 and 1993, respectively. AB is an Illinois chartered savings bank with thirteen separate locations in Illinois and a nine member Board of Directors. SCB is an Illinois chartered commercial bank with four separate locations and a Board of ten Directors. Although the banks operate out of separate offices, they do coordinate certain services such as payroll and employee benefits pursuant to an agreement executed in July 1993 ("Agreement"). In pertinent part, the Agreement provides that:

 
The administration of employee policies and benefits plus payroll services are provided for all employees of all affiliates by the staff at Bancorp. The payroll cost of this staff will be prorated to Bancorp, South Chicago Bank and Advance Bank based on the number of employees at each affiliate. Bancorp supervises the payroll for all affiliates and the affiliates are reimbursed as appropriate. Bancorp makes provision for certain employee benefits such as Employee Medical Care plans, Profit Sharing Plan, etc. The cost of these benefits will be apportioned to each affiliate, based on the enrollment of employees.

 Agreement, at 4. The Agreement provides for all services to be performed on a fee-for-service basis.

 II. Summary Judgment Standard

 Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if "there is no genuine issue of material fact and. . . the moving party is entitled to judgment as a matter of law." This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)). Once the moving party has met this burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Maxwell v. City of Indianapolis, 998 F.2d 431, 433 (7th Cir. 1993). In deciding a motion for summary judgment, the facts must be read in a light most favorable to the non-moving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). However, where the moving party has met its initial burden, the non-movant may not simply "rest upon mere allegations or denials of the adverse party's pleadings" to survive summary judgment. Fed. R. Civ. P. 56(e).

 III. Discussion

 Plaintiff Rittmeyer has the burden of demonstrating that the jurisdictional requirements of the this court are met. See America's Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992). A claim under the ADEA may only lie against an employer," which is defined as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 29 U.S.C. § 630(b). Bancorp claims that is does not fit this definition of an employer, since it only employed twelve people in 1992 and ten people in 1993 (the year Rittmeyer was terminated). Instead of disputing these figures, plaintiff counters that the judicially created "single employer" doctrine should be applied to include the employees of AB and SCB as part of Bancorp. Under the single employer doctrine, two nominally separate businesses may be so intertwined as to lead a court to consider them one ...


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