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FEELEY v. BANK OF WAUKEGAN

August 25, 1998

JOHN P. FEELEY, Plaintiff,
v.
BANK OF WAUKEGAN, Defendant.



The opinion of the court was delivered by: SHADUR

MEMORANDUM OPINION AND ORDER

 John Feeley ("Feeley") has sued his ex-employer Bank of Waukegan ("Bank"), charging it with employment discrimination in violation of the Age Discrimination in Employment Act ("ADEA"). Bank has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56, and the substantively inadequate nature of Feeley's response has obviated the need for Bank's reply (due to be filed on August 31). *fn1" For the reasons stated in this memorandum opinion and order, Bank's motion is granted and this action is dismissed with prejudice.

 This is the type of employment discrimination action that should never have been brought--an action by a terminated employee who, in contending that he was let go because he was older, is unable to face the facts that he was let go because of wholly legitimate business reasons (in this instance more than one) that had nothing to do with his age. Even with Feeley given the benefit of the required reasonable favorable factual inferences, no rational factfinder could return a verdict in his favor. And under the standard common to Rule 56 and to Rule 50(a) ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)), that compels a judgment in Bank's favor as a matter of law.

 Summary Judgment Principles

 Familiar Rule 56 principles impose on Bank the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court must "read[] the record in the light most favorable to the non-moving party," although it "is not required to draw unreasonable inferences from the evidence" ( St. Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n.2 (7th Cir. 1997)). While "this general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue" ( McCoy v. WGN Continental Broad. Co., 957 F.2d 368, 370-71 (7th Cir. 1992)), that does not negate the potential for summary judgment in cases where (as here) a movant plainly satisfies the Rule 56 standards ( Washington v. Lake County, 969 F.2d 250, 254 (7th Cir. 1992)). In those terms summary judgment is appropriate if the record reveals that no reasonable jury could conclude that Feeley was treated in a statutorily prohibited discriminatory fashion (see Fuka v. Thomson Consumer Elecs., 82 F.3d 1397, 1402 (7th Cir. 1996) and cases cited there). And as indicated earlier, the ensuing discussion demonstrates how that standard dooms Feeley's claims.

 Facts

 Because Bank has set out the factual background of the dispute with appropriate fairness, this opinion attaches the three-page FACTUAL BACKGROUND section of Bank's initial memorandum as an accurate depiction of the basic material facts of the case. And to avoid any potential concern lest that attachment might not give Feeley his due in terms of the favorable inferences to which he is entitled, what follows will identify his principal attempted quarrels with those facts. *fn2"

 For example, Feeley urges (F. 12(N) P6) that the statement by the then head of Bank's Trust Department David Murdoch ("Murdoch") that "if your progress does not continue, we will be forced to consider the termination of your services" does not indicate that Bank was then (in the fall of 1994) considering Feeley's termination because Murdoch used the word "will." That quibble is of no probative force, especially considering (1) that Feeley was effectively placed on probation at that time, (2) that his performance remained suspect thereafter (with the Trust Department continuing to sustain substantial losses through 1995) and (3) that in February 1996 Bank, the FDIC and the Illinois Commissioner of Banks and Trust Companies entered into a Memorandum of Understanding ("MOU," B. Ex. 16) that not only effectively put Bank's Trust Department on a probationary status of its own but also, in so doing, expressly questioned the "cost-effectiveness of the in-house investment officer [Feeley]."

 In that last respect Feeley argues (F. 12(N) P11) that he was mentioned on only (!) 6 of the 45 pages of the FDIC's January 5, 1996 report (B. Ex. 17) that triggered Bank's entry into the MOU with the regulatory authorities and that the report found "many problems in account and asset administration occurred due to confusion over responsibilities between the investment officer and the account administrator." Essentially Feeley urges that Bank's management, and not Feeley himself, was to blame for the existing problems. That same contention is repeated in varying fashion at F. 12(N) PP12 and 13.

 But the undoubted fact that the existing problems were not solely ascribable to Feeley, but were rather more broadly based, is really irrelevant in light of the facts (1) that Richard Block ("Block") was brought in during March 1996 as a new broom in response to the specific requirement in MOU P2 that Bank's Supervisory Committee (comprising three of its Board members) had to employ an independent outside consultant, (2) that less than three months later Block was hired by Bank as its Vice-President and Senior Trust Officer to run the Trust Department and (3) that Block's new broom swept very clean indeed--so that by 1997 not only Feeley but also Murdoch and all except one of the Trust Department's previously existing personnel were gone. And the clean sweep brought prompt results: a reevaluation of the Department in about September 1996 by the Illinois Commissioner found substantial progress, then as of April 4, 1997 FDIC also reexamined the Trust Department and found great improvement (causing it to upgrade Bank's rating) and--importantly--the Trust Department turned around to show a significant profit in 1997.

 As a prime example of Feeley's irrelevant take on what are really undisputed facts, his counsel met the B. 12(M) P15 statement that "On March 3, 1996, Block recommended the termination of Mr. Feeley's employment in agreement with the MOU" with this response (F. 12(N) P15):

 
Plaintiff does not dispute the fact that Block recommended the termination of Feeley's employment, but he strongly disputes that this decision was "in agreement with the MOU." The MOU required that the independent consultant take into consideration 7 different areas. One of those was that the consultant consider, "cost effectiveness of an in-house investment officer." The MOU did not call for the termination of the in-house investment officer, but rather called for a consideration of the cost effectiveness of such an officer. (See Defendant's Exhibit 16).

 But of course Feeley's essential problem is that after Block came on board and made his recommendations, Bank did indeed consider Feeley's cost effectiveness, found it wanting and responded by terminating him (a step taken by Bank's President Fred Abdula on the basis of Block's express recommendation).

 There is a good deal more that is set out in the part of Feeley's 12(N) Statement captioned PLAINTIFF'S STATEMENT OF ADDITIONAL FACTS, but what Feeley portrays there are really a number of disagreements with the business judgments made by Bank. What controls here instead is that those disagreements are just that--quarrels about Bank's business judgments--and that nothing about them, even when viewed from the required pro-Feeley perspective together with ...


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