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WALASZEK v. REINKE INTERIOR SUPPLY CO.

August 5, 1997

JAMES WALASZEK, Plaintiff
v.
REINKE INTERIOR SUPPLY CO., Defendant.



The opinion of the court was delivered by: GETTLEMAN

 James Walaszek ("plaintiff") brought this complaint against Reinke Interior Supply Co. ("defendant"), alleging that he was discriminated against because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 28 U.S.C. 621 et. seq. Plaintiff also seeks an accounting for past-due compensation. *fn1" Defendant has filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56. For the following reasons, the court grants defendant's motion and dismisses plaintiff's prayer for an accounting.

 Defendant (also called "Reinke Interior" herein) is a wholesale distributor of acoustical ceilings, and is owned and operated by Henry Reinke ("Reinke"), the company's founder, sole shareholder, president, and chief operating officer. Reinke also owns and operates Reinke Wholesale Supply Co. ("Reinke Wholesale"), Reinke Gypsum Supply Co. ("Reinke Gypsum"), and Midwest Laser Co. ("Midwest Laser"). Plaintiff was employed by Reinke in the mid-1970s. In 1976, Reinke, with plaintiff's help, started Midwest Laser. By the late 1980s, plaintiff had become Vice President and General Sales Manager of Reinke Interior. In that capacity, plaintiff was directly responsible for sales to defendant's largest account, Justrite Acoustics ("Justrite"), and for seven other significant accounts. He was also responsible for supervising the other salespersons involved in Reinke's businesses. Plaintiff was paid a sales commission for his own sales, for the sales of other employees, and for overall company performance.

 Until 1986, plaintiff was involved in the operations of Midwest Laser. He received a commission on Midwest Laser's sales until 1991. In 1991, defendant hired Richard Fisher ("Fisher") as the company's comptroller. Fisher computerized defendant's financial and sales information so that the firm's financial performance could be monitored and managed more easily. Based on reports generated by this system, Fisher and George Cumpata ("Cumpata"), Reinke's CPA and primary financial advisor, decided that defendant should revise its sales force's compensation packages, moving from a base salary and sales-driven commission system to one based on factors that affected sales and profit margins. Reinke instructed Fisher and Cumpata to develop a new compensation package for the sales force. Plaintiff was presented with his new compensation package in early 1992, which had a base salary and a "commission and bonus pool." The pool's value was calculated on the basis of four factors: gross profit on sales, inventory turnover control, salespersons' quotas, and overall company profitability (return on investment).

 Plaintiff calculated his pay each quarter and submitted it to Reinke, who would then accept or reject it. Defendant's sales began to decline in 1989. Further, sales to Justrite began to decline during the period 1991 to 1993. In the summer of 1993, the entire sales force of Midwest Laser resigned and started a similar company designed to appropriate defendant's customers. Reinke asked plaintiff to operate Midwest Laser until a new sales force was in place. Plaintiff expressed reservations about the assignment, and was particularly concerned with how his compensation would be measured. He subsequently refused to help with Midwest Laser's management. On September 28, 1993, after Reinke ordered him to run Midwest Laser and plaintiff again refused, Reinke fired him. Plaintiff was forty-four years old. After his termination, the Justrite account was given to Mike Reynolds ("Reynolds"), a new 30-year-old employee. On December 9, 1993, plaintiff filed a charge of age discrimination against defendant with the EEOC.

 Just before plaintiff was fired, Fisher calculated the final payments owed to him, based on plaintiff's most recent calculations, and produced detailed final payroll and commission checks. After his termination, plaintiff was mailed these checks amounting to $ 9081.92. He also received another $ 2,000 as "severance." Plaintiff requests an accounting of the return-on-investment portion of his bonus plan for 1992 and 1993, and seeks commissions on sales for part of the third and all of the fourth quarters of 1993.

 STANDARD

 Summary judgment should not be granted unless there is no genuine issue of material fact. Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the court is to construe the evidence in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). This standard places the initial burden on the movant to identify those portions of the record on file which 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). The burden then shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). The granting of summary judgment to an employer is appropriate, however, if on the facts before the court, taken as favorably to the plaintiff as the evidence permits, no rational jury could conclude that he was fired due to discriminatory animus. Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990).

 DISCUSSION

 I. Age Discrimination

 Plaintiff's complaint alleges that he was terminated because of his age. To establish a claim for discriminatory termination, plaintiff must show that his age was a determining factor in defendant's adverse employment decision. Plaintiff may prove his claim by presenting other direct or indirect evidence of discrimination. In the instant case, plaintiff chooses the indirect approach, in which he must follow the four-step framework promulgated in McDonnell-Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). To establish a prima facie case under McDonnell-Douglas, plaintiff must show that: (1) he is in the protected age group; (2) he was performing to his employer's legitimate expectations; (3) he was terminated; and (4) younger employees were treated more favorably. Id. at 794; Roper v. Peabody Coal Co., 47 F.3d 925, 926 (7th Cir. 1995).

 Once plaintiff has established a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1302-03 (7th Cir. 1991). If the employer articulates such a reason, the burden of production shifts to the employee to prove by a preponderance of the evidence that the proffered reason was really a pretext for discrimination. Id., at 1303. Pretext means "a lie, specifically a phony reason for some action." Russell v. Acme-Evans Co., 51 F.3d 64, 65 (7th Cir. 1995). Plaintiff may demonstrate pretext by showing that discrimination motivated defendant to lay him off, or that defendant's explanation is unworthy of credence. Grohs v. Gold Bond Bldg. Prod., 859 F.2d 1283, 1286 (7th Cir. 1988), cert. denied, 490 U.S. 1036, 1041, 104 L. Ed. 2d 405, 109 S. Ct. 1934 (1989).

 In the instant case, both parties agree that plaintiff is able to meet the first and third elements of the McDonnell-Douglas framework. However, defendant alleges that plaintiff did not meet its legitimate performance expectations, and denies that plaintiff was replaced by Reynolds. However, the court need not address whether plaintiff has established a prima facie case if defendant has met its burden of production under McDonnell-Douglas. See Sample v. Aldi Inc., 61 F.3d 544 (7th Cir. 1995). Where the defendant has done everything that would be required of it if plaintiff had made a prima facie case, whether the ...


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