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BAKKE v. COTTER & CO.

November 12, 1997

ARVID M. BAKKE, Plaintiff,
v.
COTTER & COMPANY, an Illinois Corporation, Defendant.



The opinion of the court was delivered by: BUCKLO

 The plaintiff, Arvid M. Bakke, sued his former employer, Cotter & Company ("Cotter") under federal and state law. Cotter moved for summary judgment. For the following reasons, the motion is denied.

 I. *fn1"

 In 1994, BB&R decided to automate its paint brush manufacturing process. (Id. P 17.) Mr. Moniz decided to develop an automation system in-house by "tying together" existing and newly purchased equipment. (Id. P 19, 21.) Mr. Bakke was assigned to work on this project ("paint brush manufacturing automation project").

 Tru-Test division ("True Test") of Cotter manufactures paints and related products, such as brushes and rollers. (Id. P 1.) In 1995, Tru-Test absorbed BB&R. (Id. P 3.) David Bigelow, the Manufacturing Manager of Tru-Test, discontinued the paint brush manufacturing automation project in which Mr. Bakke was engaged. (Id. P 26.) He also recommended that Cotter purchase the Polese, *fn2" which automates the paint brush manufacturing process. On June 30, 1995, at age 54, Mr. Bakke was discharged. (Id. P 4.)

 Mr. Bakke filed suit against Cotter charging age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and breach of contract and promissory estoppel under Illinois law. Cotter moves for summary judgment. *fn3"

 II.

 Age Discrimination in Employment Act (ADEA)

 Prima Facie Case4

 When a case involves an employer's reduction-in-force (RIF), *fn5" an ADEA plaintiff makes out his prima facie case by showing that (1) he was in the protected age group, *fn6" (2) he was performing to his employer's satisfaction, (3) he was discharged, and (4) younger employees were treated more favorably. *fn7" Collier v. Budd Co., 66 F.3d 886, 889 (7th Cir. 1995).

 There is no dispute that Mr. Bakke meets the first three elements of the prima facie case. At the time of his discharge, Mr. Bakke was 54 years old and, therefore, in the protected age group. Cotter concedes that the plaintiff performed his duties satisfactorily. The parties dispute whether Mr. Bakke has shown that Cotter treated younger employees more favorably.

 Mr. Bakke argues that the defendant treated younger employees more favorably because, although he eliminated Mr. Bakke's position, Cotter assigned all of the plaintiff's former duties to younger employees, Leo Geib (age 32), George Krueger (age 43), and Richard Cygan (age 49). Cotter responds that Messrs. Geib, Krueger, and Cygan were not similarly situated to Mr. Bakke because they occupied different positions. I agree that, in order to raise an inference of discrimination, the younger employees whom the defendant does not fire in the course of a RIF must be similarly situated to the plaintiff. Gadsby, 71 F.3d at 1332 (in RIF, "inference of discrimination comes from the belief that employer selected the plaintiff for termination . . . from a group of employees who were equally qualified for termination"); Roper v. Peabody Coal Co., 47 F.3d 925, 927-28 (7th Cir. 1995) (prima facie case not made out where plaintiff pointed to younger "employees who [were] not easily comparable to [him]"). However,

 
in an RIF case, the inference of discrimination raised by the more favorable treatment of younger employees (typically the act of not firing them) is premised on some degree of fungibility between the plaintiff's job and the younger employee's job. . . . The fungibility of jobs is implicit when the terminated employee's responsibilities are absorbed by other employees. The inference of discrimination comes from the belief that the employer selected the plaintiff for termination based on age from a group of employees who were equally qualified for termination based on criteria other than age.

 Gadsby, 71 F.3d at 1331. "Although redistribution of a discharged employee's duties to younger employees is insufficient by itself to establish a prima facie case of age discrimination[,] . . . specific circumstances of [a] case [may] raise some suspicion as to [the defendant's] motives in implementing its reduction in force." Lewis, 114 F.3d at 748. So that if an employer claims that the position was eliminated because it was no longer necessary, as Cotter does here, yet effectively preserves it by assigning the plaintiff's former duties to the remaining younger employees, an inference of discrimination is raised. See Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997) (employer cannot "get around . . . McDonnell Douglas formula[] by fractionating an employee's job"); Collier, 66 F.3d at 890 (prima facie case is flexible standard and fourth prong varies depending on circumstances). If Mr. Bakke's job was, indeed, divided among Messrs. Geib, Krueger, and Cygan, the latter individuals can be deemed to be "similarly situated" for the purposes of the prima facie case.

 Mr. Bakke's Position Prior to His Discharge

 In order to determine whether Mr. Bakke's duties were absorbed by the remaining employees, it is necessary to identify what Mr. Bakke's position entailed.

 Cotter says that Mr. Bakke was an Engineering Manager, "primarily responsible for developing in-house machinery systems, either to automate existing functions or provide functions not yet available at BB&R," which involved (1) developing detailed sketches of machinery, (2) bringing pieces or sections of machinery together, and (3) modifying machinery. (12(M) Statement PP 5, 15, 16.) Mr. Bakke admits that he modified machinery. (12(N) Statement P 29 at 23.) He insists, however, that, with a few exceptions, his duties did not include the actual fabrication of machines. (Id. P 29 at 27.) He points out that Cotter's witnesses were able to identify only two machines which Mr. Bakke actually designed and built. (Id. P 15 at 8.) He also insists that the "sketches" to which Cotter refers were not technical drawings. (Id. P 29 at 27.)

 Mr. Bakke says that, throughout his tenure at Cotter, he was responsible for installing equipment; considering new equipment for possible purchase; performing cost analyses; supervising the installation of new equipment; considering ways to modify existing equipment to improve operations; reducing costs by conducting efficiency studies; training other employees; troubleshooting when problems with a particular piece of machinery or equipment developed; ensuring proper quality of the product being manufactured and of the raw materials received; supervising other employees; monitoring and responding to customer complaints; ensuring compliance with environmental regulations; conducting projects, such as the broom manufacturing project, the foam brush project, and the paint brush manufacturing automation project; and preparing reports. (Id. P 29 at 22-27.) Cotter admits that Mr. Bakke determined how the manufacturing process should be improved and suggested new machinery to accomplish improvements, but calls these "secondary, non-engineering function[s]." (12(M) Statement PP 58-60. Cotter also admits that Mr. Bakke was involved with new equipment purchases and had quality control responsibilities, but emphasizes that Mr. Bakke spent a total of 10 percent of his time on these duties in 1994 and 1995. (Id. PP 62, 63.)

 Both parties rely on Mr. Bakke to identify his job functions: Cotter, on Mr. Bakke's deposition, and Mr. Bakke, on the deposition and his affidavit. The dispute is really about the characterization of Mr. Bakke's statements and the extent to which the different duties occupied his time, particularly during 1995. A reasonable factfinder could interpret ...


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