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ANTOS v. BELL & HOWELL CO.

July 7, 1995

RICHARD ANTOS, Plaintiff,
v.
BELL & HOWELL COMPANY, Defendant.



The opinion of the court was delivered by: RUBEN CASTILLO

 Plaintiff Richard Antos ("Antos") sues defendant Bell & Howell Company ("Bell & Howell") for age discrimination under the Age Discrimination in Employment Act [hereinafter ADEA], 29 U.S.C. ยง 623 et seq. In a one count complaint, Antos alleges that Bell & Howell violated the ADEA when it terminated his employment. Antos also claims that Bell & Howell breached a contractual promise to pay him 52 (rather than 36) weeks of severance benefits following his termination. Bell & Howell moves for summary judgment, contending that Antos' ADEA claim is time barred. For the reasons discussed below, Bell & Howell's motion for summary judgment is granted, and Antos' contract claim is remanded to state court.

 BACKGROUND

 The facts in this section have been taken from the complaint and answer, from the pleadings and exhibits and from the parties' Local Rule 12(M) and (N) Statements of Material Facts as to which there is no genuine issue. See UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, RULE 12. *fn1" In addition, the parties have filed Statements of Additional Facts pursuant to Local Rule 12(N)(b)(3).

 Richard Antos was born on August 30, 1936, and was fifty-five (55) at the time Bell & Howell, his former employer, terminated him. Compl. P 8 Antos began working for Bell & Howell on November 14, 1957, when he was twenty-one (21) years old. Compl. P 7. In 1987, after 30 years of service, Bell & Howell promoted Antos to the position of Quality Control Manager in its DocuMail and Sorting Divisions. Rule 12(M) P 1. Antos held this position for approximately four (4) years. Rule 12(M) P 2. On August 21, 1991, Antos' supervisor, Peter Salamoun ("Salamoun") officially advised Antos, by an Internal Memorandum ("Memo"), that Bell & Howell intended to eliminate his management position in the DocuMail Division and would not "absorb" his "function" as a "full quality control position" in the Sorting Division. Def. Ex. 1. Antos was subsequently terminated on September 20, 1991, after 34 years of service. Rule 12(M) P 4. At the time of his termination, Antos earned $ 71,000 per year. See Def. Ex. 3, Illinois Department of Human Rights ("IDHR") Notice of Dismissal ("Notice") at 2.

 As a manager, Antos primarily supervised the work of quality control engineers, rather than performing the quality control work, himself. Id. Antos did not work full-time in either division. Instead, he spent about 60% of his time managing the quality control function in the DocuMail Division and 40% of his time managing the quality control function in the Sorting Division. Rule 12(M) P 2.

 The DocuMail Division was entirely dependent for its business on contracts from the United States Post Office, and Antos fully understood that his job continuity was a function of the division's ability to secure new manufacturing contracts. Rule 12(M) P 3. By early 1991, Antos had been told that there were no new contracts for DocuMail, and by May of 1991, Antos knew that he was going to be terminated from the DocuMail Division by the end of the year. Id.

 The scope of Antos' work in the Sorting Division was also changing in 1991. During the six months to one year before his termination, Bell & Howell reduced Antos' duties in the Sorting Division by 85%. Rule 12(M) P 5. Twenty-five (25%) percent of this reduction constituted repair department supervision work which was taken away from Antos by his boss, Bob Reese. Id. Additionally, in the first half of 1991, Reese began relying more on Vic Uvero, a quality control engineer who reported to Antos, for the final test inspection work which debugged the software testing program. Rule 12(M) P 6. The final test inspection work was an additional 30% of Antos' Sorting Division work. Id. Finally, sometime in 1991 before Antos' termination, Reese, himself, took over the management and administrative work in the quality control area, rather than working through Antos. This was another 30% of Antos' Sorting Division work. Rule 12(M) P 6. All in all, 85% of Antos' Sorting Division work (40% of Antos' job) was absorbed or taken away from him at the same time that Bell & Howell planned to eliminate Antos' management position in DocuMail due to the company's inability to secure new manufacturing contracts.

 Additionally, in the Spring of 1991, at the same time that Bell & Howell planned to eliminate Antos' DocuMail management position, profitability was down in the Sorting Division. Rule 12(M) P 7. Not only did Bob Reese absorb Antos' supervision duties, but younger individuals, who did the actual testing work and were paid less money than Antos, were also retained and/or hired to perform software work, in addition to some of the non-supervisory duties performed by Antos. Rule 12(M) PP 8-9, 12-15. None of these younger individuals were given the same title Antos held at the time of his termination. Compl. & Answer P 21; Ex. 3, IDHR Notice at 3; Rule 12(M) P 7.

 Not surprisingly, on August 21, 1991, Antos received an Internal Memorandum from Peter Salamoun, which notified him that he was not only being terminated from his position in DocuMail, but also that the Sorting Division would not be absorbing him as a full-time employee after his "phase-out" from DocuMail. The language of the Memorandum states in relevant part:

 
Phillipsburg Sorting (Sorting Division) confirmed today that your function will not be absorbed as full Q.C. position in their organization after your phase-out from DocuMail. . . . In view of this decision, DocuMail will make your planned . . . severance day effective September 20, 1991, . . . Within the next 30 days all personal and operating matters will be addressed to responsibly conclude your long service with Bell & Howell. Please bring up any questions or concerns you might have or as they arise.

 Def. Ex. 1.

 After Antos was terminated, he filed an age discrimination charge against Bell & Howell with both the IDHR and the EEOC. Rule 12(M) P 9; Def. Ex. 2, 3, 4. The IDHR charge was filed on December 28, 1991; it is not clear from the record when the EEOC charge was filed. Since Bell & Howell does not contest the timeliness of the EEOC charge, this Court will not either. *fn2"

  The IDHR dismissed Antos' charge on December 30, 1992, for lack of substantial evidence. Def. Ex. 2, IDHR Notice at 1. Similarly, the EEOC dismissed Antos' charge and issued a right to sue letter on June 30, 1993. Def. Ex. 1, EEOC Determination Letter at 2. Both the IDHR and the EEOC determined that the alleged ADEA violation occurred on August 21, 1991, the date Antos was notified of his impending termination. *fn3" Def. Ex. 1, EEOC Determination Letter at 1; Def. Ex. 2, IDHR Notice at 2. In its determination letter, the EEOC advised Antos that he could file a lawsuit in federal district court "within 2 years of the date of alleged discrimination or within 90 days of receipt of this letter, whichever is earlier, in order to assure the right to sue." Def. Ex. 2, EEOC Determination Letter at 2. The IDHR and EEOC determined that the "date of alleged discrimination" was August 21, 1991, the date Salamoun communicated Bell & Howell's termination decision to Antos by Memo. Two years from the date of this ...


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