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TIPSWORD v. OGILVY & MATHER

January 29, 1996

DIANE TIPSWORD, Plaintiff,
v.
OGILVY & MATHER, INC., Defendant.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Diane Tipsword brings this three-count complaint against Ogilvy & Mather, Inc. ("O&M"), alleging age discrimination, gender discrimination, and retaliatory discharge. Presently before this court is the defendant's motion for summary judgment on all counts. For the reasons set forth below, the motion is granted in its entirety.

 I. Background *fn1"

 Tipsword began working in the Chicago office of O&M, an advertising and direct marketing agency, in 1977. She was promoted to the position of senior vice president in 1989, and by 1993, at the age of 61, was the director of finance for the Chicago office. Def.'s 12(M) PP 3, 8. However, on December 6, 1993, she met with Derek Carstens, the president of O&M's Chicago office, who told her that he was "retiring" her from the company because of a reorganization of the office. Def.'s 12(M) P 5. It was this event that precipitated the instant lawsuit.

 According to Carstens, Tipsword's termination was the result of a reduction-in-force ("RIF") at O&M, caused by the financial hardships over the previous year and the loss of a major client. Def.'s 12(M), Ex. C PP 4-6. In addition, Carstens contends that he was under a mandate from O&M's corporate headquarters in New York to reduce his office's financial and administrative costs, and centralize certain functions at the New York office. Def.'s 12(M), Ex. C. P 8; Pl.'s 12(N), Ex. B. at 49. Carstens maintains that his decision to terminate Tipsword in the December 1993 RIF was based on three factors. *fn2" First, he claims that two of her subordinates--Robert Donovan, a 45-year old male, and Joan Peterson, a 54-year old female--were fully capable of performing the plaintiff's duties and were paid significantly less than her. Def's 12(M) P 10, Ex. C P 7, Ex. D P 9. Second, in accordance with the mandate from O&M's headquarters, he concluded that Tipsword's financial duties would be performed with greater frequency in New York, thus militating against a separate position in the Chicago office. Third, he claims to have been dissatisfied with Tipsword's "computer and MIS" work. Def's 12(M). Ex. C P 8.

 Tipsword continued working for O&M until December 31, 1993, and was paid by the company through January 15, 1994. Def.'s 12(M) PP 6-7. In February 1994, O&M heard from Tipsword's lawyer who demanded compensation because of his client's termination, and supported his demand with O&M salary and bonus information obtained by Tipsword prior to her departure. Def.'s 12(M) PP 26-27. On February 8, 1994, Tipsword filed a charge of age and gender discrimination with the Equal Employment Opportunity Commission ("EEOC"), and received a right to sue letter from the EEOC in late 1994. She filed the instant action on December 21, 1994, alleging age discrimination (Count I), sex discrimination (Count II), and retaliatory discharge (Count III). With regard to this last count, the plaintiff contends that she was terminated because on December 9, 1992, she questioned an accounting decision of Bruce Jasurda, a superior at O&M. Specifically, she claims that Jasurda wanted to carry over certain expenses until 1993, thereby increasing the money available for bonuses, whereas she believed these expenses should be recognized in 1992. Tipsword admits that her method of accounting was eventually used, and that Jasurda never spoke with her again about the incident. Def.'s 12(M) PP 51-52. Nonetheless, she contends that she was terminated one year after the event because of her protest.

 Although the parties have filed their joint pretrial order, O&M now moves for summary judgment on all three counts, or in the alternative, for partial summary judgment on Counts I and II.

 II. Summary Judgment Standard

 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. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party bears the initial burden of identifying "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)). The movant may satisfy this burden by presenting specific evidence on a material issue, or by pointing out "an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. Once the moving party has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings; rather, the non-movant "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). In ruling on a motion for summary judgment we read the facts in a light most favorable to the non-moving party, Cuddington v. Northern Ind. Public Serv. Corp., 33 F.3d 813, 815 (7th Cir. 1994), and refrain from making credibility determinations, see Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992).

 III. Discussion

 A. Counts I and II (Age and Gender Discrimination)

 Tipsword's first two counts are based on the theory that she was illegally terminated because of her age and sex and not because of any legitimate reason to reduce O&M's workforce. Substantively, Count I is brought under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1), and Count II under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a)(1). Because Tipsword does not present any "direct" evidence of age or sex discrimination--that is, "evidence that can be interpreted as an acknowledgment of discriminatory intent by the defendant or its agents," Hill v. Burrell Communications Group, Inc., 67 F.3d 665, 667 (7th Cir. 1995) (quoting Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir. 1994))--she must proceed with both counts according to the burden-shifting analysis established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Simply put, this indirect method of proving invidious discrimination requires the plaintiff to first put forth sufficient evidence of the elements of her prima facie case. Collier v. Budd Co., 66 F.3d 886, 889 (7th Cir. 1995). If the plaintiff can do this then a rebuttable presumption of discrimination arises, and the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the termination. Gadsby v. Norwalk Furniture Corp., 71 F.3d 1324, slip op. at 11 (7th Cir. 1995). Once the defendant satisfies this burden of production, then the plaintiff must come forward with evidence showing that this explanation is actually a pretext for unlawful discrimination. Id. Where the plaintiff cannot present evidence that the proffered justification is pretextual, the defendant is entitled to summary judgment. Collier, 66 F.3d at 889; DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir. 1995).

 In its motion for summary judgment O&M does not challenge Tipsword's ability to satisfy her prima facie case. *fn3" Rather, it contends that the plaintiff cannot undermine its legitimate reasons for terminating her. O&M proffers three reasons for including Tipsword in the December 1993 RIF. First, it contends that due to the loss of a major client and an overall downturn of business in 1993, Carstens decided to reduce labor costs by removing tasks from certain employees and consolidating them with others. It maintains that Tipsword, who was one of the highest paid employees in the accounting department, was chosen for termination because her duties could be handled by Peterson and Donovan, two of her subordinates. Indeed, Carstens believed that these two employees were already performing "virtually all" of Tipsword's duties just prior to her termination, and thus her removal would cause a limited amount of disruption. Def.'s 12(M), Ex. C. P 7. *fn4" Second, Carstens contends that O&M had directed him to reduce administrative costs in areas that could be centralized in its headquarters in New York. Given that financial operations seemed an easy target for centralization, Carstens claims that Tipsword's position was an appropriate target for elimination. Id. P 8. Third, Carstens claims that he was not satisfied with Tipsword's performance in "computer and MIS areas." Id. P 8. O&M contends that due to these three factors, Tipsword's position was eliminated and Donovan and Peterson took over the plaintiff's responsibilities. We find all three of these proffered reasons for termination sufficient to satisfy O&M's burden of production. See Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, ...


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