brushes and rollers. (12(M) Statement P 5.) Prior to joining BB&R, Mr. Bakke worked as an Engineer for approximately seven years for EZ-Paintr. (Id. P 6.) A recruiter contacted Mr. Bakke to determine whether he was interested in alternative employment with Cotter. (Id. P 7.) Richard Moniz, BB&R's General Manager, interviewed and made the offer to Mr. Bakke. (Id. PP 9-13.)
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,
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.
Age Discrimination in Employment Act (ADEA)
Prima Facie Case4
When a case involves an employer's reduction-in-force (RIF),
an ADEA plaintiff makes out his prima facie case by showing that (1) he was in the protected age group,
(2) he was performing to his employer's satisfaction, (3) he was discharged, and (4) younger employees were treated more favorably.
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.