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August 4, 1997

PAUL J. HOFFMAN, Plaintiff,
MCA, INC., Defendant.

The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Plaintiff Paul J. Hoffman ("Hoffman") filed the instant suit, alleging age discrimination in violation of the Age Discrimination in Employment Act. ("ADEA"), 29 U.S.C. §§ 623(a) & 631(a). Before the court are Defendant MCA, Inc.'s ("MCA") Motion to Strike and MCA's Motion for Summary Judgment. For the following reasons, the motion to strike is denied and the motion for summary judgment is granted.

 I. FACTS *fn1" *fn2"

 MCA hired Hoffman on December 5, 1977, as a sales representative in its Chicago sales office. MCA employed Hoffman through a series of employment contracts. MCA fired Hoffman in June 1994, at which time he was a Vice President/Midwest Regional Manager ("VP/MRM").

 MCA is a television syndicator which sells television programs to television stations. MCA has various sales offices throughout the United States, from which it sells to regional markets. Hoffman was one of ten sales representatives in the sales division.

 As a matter of practice, MCA gave sales representatives, including Hoffman, a raise and bonus each year. MCA did not conduct formal performance reviews. Each year, Hoffman was one of the top producers of sales revenue for the division.

 In 1988, Hoffman began reporting to James Kraus ("Kraus"). Kraus is twelve years younger than Hoffman.

 In 1991, MCA promoted Hoffman to VP/MRM. In that position, Hoffman retained the duties he held as a sales representative, and became additionally responsible for supervising other sales representative in the Chicago office. As VP/MRM, Hoffman still reported directly to Kraus, the Executive Vice President/Director of Sales and Marketing, who in turn reported to Shelly Schwab ("Schwab"), the President of MCA Television, who was born in 1936.

 As Hoffman's direct supervisor, Kraus was entitled to monitor Hoffman's performance and know his whereabouts. Kraus testified that he would hypothetically treat a performance deficiency by a subordinate as follows: "You let him or her know that there is an issue and a concern, and you address it up front. Then you make suggestions to remedy the situation, in whatever form that may take." (Kraus Dep. at 109.)

 In 1991, MCA negotiated the last of a succession of employment contracts between MCA and Hoffman, for the period from January 1, 1992, through December 31, 1994. The contract provided that MCA had no obligation to renew the contract upon its expiration, or to utilize Hoffman's services during the contract term.

 On August 16, 1991, Kraus met with Dan McKimm ("McKimm"), a sales representative whom Hoffman supervised in Chicago. Kraus' affidavit states that McKimm complained of Hoffman's conduct during a meeting with customers in Indianapolis, in which Hoffman abruptly closed his briefcase and walked out, stating, "I knew you guys were jerking us around." (Kraus Decl. P 4.) Kraus' affidavit also states that McKimm indicated to Kraus that Hoffman's conduct stunned and confused everyone at the meeting. Hoffman denies that he behaved in such a manner.

 Kraus' affidavit also states that, in September 1991, McKimm informed Kraus that McKimm was breaking his contract with MCA to take a job with the Tribune Company, a competitor of MCA. According to Kraus' affidavit, McKimm indicated to Kraus that Hoffman gave McKimm permission to interview and stated that he would not hold McKimm back.

 Hoffman did not have authority to alter any contract McKimm had with MCA. Still, Hoffman states that he was unaware that McKimm was under contract with MCA. Further, Hoffman states that he did not give McKimm permission to interview. Hoffman admits that both Schwab and Kraus notified Hoffman of McKimm's departure, but denies MCA's allegation that Schwab and Kraus told Hoffman that his actions regarding the incident were inappropriate. *fn3" Hoffman denies that the McKimm incidents factored into MCA's termination decision.

 On February 18, 1991, MCA hired Kristie Orr ("Orr") as a salesperson in the Chicago office. Orr reported directly to Hoffman, her supervisor. In October 1991, MCA held a sales meeting for all sales staff. At the meeting, Orr complained to Kraus that Hoffman made her life "a living hell." (Kraus Decl. P 6.) Kraus deduced from Orr's performance that Hoffman was not adequately training or supervising Orr. Hoffman's affidavit states that Kraus complained to Hoffman several times about Orr's demeanor and job performance.

 Kraus and Schwab state in their affidavits that, based on Orr's complaints and Kraus' observations, MCA determined that Orr should report to Steve Rosenberg of the New York City office, rather than to Hoffman. Hoffman's affidavit states that the change was made not because of Orr's complaints, but rather because Hoffman had complained to Kraus that he could not work with Orr after she made some intensely personal and inappropriate remarks to him. According to Hoffman, Hoffman told Kraus of these remarks, and Kraus did not fault Hoffman for feeling uncomfortable with them. The change of Orr's supervisor divested Hoffman of any supervisory authority over any sales staff. *fn4"

 On November 18, 1991, Kraus expressed concern to Hoffman regarding Hoffman's lack of communication with Kraus, and asked that they attempt to improve their business relationship. Kraus' affidavit states that Kraus informed Hoffman of three general expectations Kraus had of Hoffman: advising Kraus in advance of travel plans, calling Kraus with a progress report during market visits, and advising Kraus of progress of negotiations as they occur. Hoffman's affidavit denies that Kraus expressed concern regarding Hoffman's failure to follow of MCA's procedures for reporting travel. Hoffman states that he followed MCA's travel procedures at all times during his seventeen-years of employment.

 Following the November 18, 1991, conversation, Kraus sent Hoffman a memo on November 22, 1991, memorializing his expectations. Hoffman believes that Kraus sent the memo "as part of his campaign to have Hoffman fired in late 1991." *fn5" (Hoffman Decl. at P 9.) The memo instructed Hoffman to, among other things, call Kraus on Friday or Monday to inform Kraus of Hoffman's travel plans for the upcoming week, apprise other sales offices about cross-over markets or other prospective deals in advance of final negotiations, and keep regular working hours and be accessible during those hours.

 The guidelines for communication Kraus set forth applied to everyone under Kraus' supervision. Hoffman states that he did keep regular working hours.

 Hoffman states that, on November 25, 1991, the Monday before Thanksgiving, Hoffman called Kraus in order to apprise him of Hoffman's plans for a trip to Minneapolis the following week. Kraus did not return the call. When Kraus called the Chicago office on the Wednesday before Thanksgiving, he left a message on an answering machine and did not receive a return phone call until 2.5 hours later. Kraus says that, when they spoke, he reminded Hoffman of Hoffman's obligation to keep Kraus posted on Hoffman's whereabouts during working hours; Hoffman denies such a reminder.

 On December 3, 1991, Kraus spoke with Hoffman again, at his hotel room in Minneapolis. Kraus did not believe that Hoffman had contacted Kraus regarding the trip in advance. Hoffman told Kraus that Hoffman had informed Kraus the week before. The conversation became heated. Although MCA and Hoffman do not agree as to who used vulgar language, they do agree that at least one party to the conversation did so. Kraus believed that it was inappropriate for Hoffman to speak to him as he did. Kraus hung up on Hoffman. It seemed to Hoffman that Kraus was obsessed with Hoffman's whereabouts.

 Kraus recommended to Schwab that MCA should not renegotiate Hoffman's contract, which was set to expire December 31, 1991. In late 1991, Kraus sent two confidential memos to Schwab regarding Kraus' concerns about Hoffman's job performance. Kraus did not place the memos in Hoffman's corporate personnel file, but retained the memos in Kraus' file on Hoffman. From January 1991, Kraus did not document his concerns about other employees through confidential memoranda to the separate files he maintained for them. Hoffman asserts that several of the incidents Kraus documented in the memos were "false and misleading," including mischaracterizations of Hoffman's reporting to Kraus and appearing for sales meeting in a timely manner. Both Kraus and Schwab testified that the reported incidents involved serious problems. MCA denies that the reported incidents were false and misleading.

 Schwab overruled Kraus' recommendation not to renew Hoffman's contract in 1991, and MCA renewed the contract for another three years. Kraus stated that Hoffman "was deemed somebody we ...

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