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August 30, 1999


The opinion of the court was delivered by: Shadur, Senior District Judge.


Daniel Grace ("Grace") has sued Ansul, Inc. ("Ansul"), asserting that his termination by Ansul violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 to 634. Grace seeks compensatory and punitive damages in addition to equitable relief, attorneys' fees and court costs.

Ansul now moves for summary judgment under Fed.R.Civ.P. ("Rule") 56. Both sides have complied with this District Court's General Rule ("GR") 12(M) and 12(N),*fn1 and the motion is fully briefed and ready for decision. For the reasons set out in this memorandum opinion and order, Ansul's motion is denied and the case must go to trial. Denial of the motion also implicates other consequences, discussed in the Conclusion section of this opinion.

Summary Judgment Standards

Familiar Rule 56 principles impose on Ansul the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 a movant plainly satisfies the Rule 56 standards. In those terms summary judgment is appropriate if the record reveals that no reasonable jury could conclude that Grace 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).

As with every summary judgment motion, this Court accepts nonmovant Grace's version of any disputed facts. Hence what follows in the Facts section (and in any later factual treatment) is culled from the parties' submissions, with any differences between them resolved in Grace's favor. Other relevant facts, which fit somewhat better into the substantive legal discussion, will be set out later in this opinion.


Grace's birthdate is December 25, 1937 (A.12(M) ¶ 1; G. 12(N) ¶ 1), so that when he was fired by Ansul in mid-1997 he was 59 years old. In May 1977 he had begun working for Ansul, a manufacturer and distributor of fire protection products (A.12(M) ¶ 2), as a district sales manager (id. ¶ 25). Grace then held various supervisory positions in the company until late 1995, when he was considered for promotion to market development manager for pre-engineered systems (G.12(N) 122). As part of the application process for that job, Grace was required to prepare a marketing plan for Ansul's Micro K product line (id. ¶¶ 22, 26).

Ansul Director of Sales Robert Gibbs ("Gibbs," born November 16, 1947 (A. Ex. C at 8)), who had known Grace since the latter's 1977 start at Ansul (A.12(M) ¶ 4), recommended that Grace receive the promotion (id. 151-52). Ansul President Karl Kinkead ("Kinkead") ultimately approved it (id. ¶ 52), and Gibs then became Grace's immediate superior (id. ¶ 3). Gibbs' December 1995 performance review of Grace (G.12(N) ¶ 17; G. Ex. All) reflected high optimism about Grace's promotion:

  If past performance is any indicator, [Gracel]'s
  success in his new position is virtually guaranteed.

According to an internal Ansul human resources memorandum, Grace's primary responsibility in that new position was "[t]o assume complete, worldwide marketing responsibility for the pre-engineered systems product groups, which includes the identification of new markets and products, developing strategies, marketing and promotional programs, and growing sales, profitability and market share for the assigned product group" (G.Ex. A4). Examples of the fire protection products for which Grace was responsible were the new Micro K product, the R102 restaurant system, the new R103 restaurant system that was ultimately to replace the R102 system, and various vehicle systems.

In September 1996 Gibbs held a meeting to discuss sales development with the three marketing development managers: Grace, David Pelton ("Pelton") and Larry Christensen (G.12(N) ¶ 143). Gibbs was unhappy with Ansul's sales growth for July and August of that year, and according to Grace he directed the three managers to focus their efforts in that area (id.). Grace says that he had no other conversations with Gibbs that month in which Gibbs told him to spend more of his time on the new R103 restaurant system (id. 0 ¶ 144). Furthermore, except for the arguably quite different focus of that September 1996 marketing meeting, Grace denies that Gibbs criticized his time allocation or any other aspect of his performance at any time between August 1996 and mid-December 1996 (Grace Aff. at 10).*fn2 Grace does, however, state that in October and November 1996 Gibbs and Kinkead shifted Grace's priorities away from sales growth of existing products and toward the new R103 restaurant and Micro K systems, in addition to the bus system (G.12(N) ¶¶ 173, 175-76).

Ultimately Grace received a December 26, 1996 memorandum from Gibbs that contained a warning that he must improve his performance (A.12(M) ¶¶ 109-10). After criticizing Grace's results, the memorandum concluded (A. Ex. 4 at 2):

  In addition, you must now concentrate all of your
  efforts into putting together your complete marketing
  plans for both the next generation [R-103] restaurant
  systems and the Micro-K product lines. These
  comprehensive plans must be completed by the end of
  January so they can be presented to Karl [Kinkead]
  for approval. Please take these projects very
  seriously as your failure to finally produce solid,
  organized marketing plans for these 2 product lines
  and your continued failure to put together strong
  market development programs will necessitate

  your being replaced in your present market
  development role.

That month Gibbs met with Grace for about an hour to express those concerns in person (A.12(M) ¶ 11). During that meeting Gibbs also told Grace that Kinkead had said he never would have promoted Grace to marketing development manager if Kinkead had known how old Grace was (G.12(N) ¶ 189).*fn3 Gibbs denies making that statement (A.12(M) ¶¶ 134-35), but once again Grace's account must be accepted.

In response to Gibbs' concerns, Grace completed a marketing plan for the R103 restaurant system in January 1997 (A.12(M) ¶ 120; G. 12(N) ¶ 216). Gibbs and Kinkead nonetheless decided to terminate Grace (A.12(M) ¶¶ 124-25). They told him of that decision in February 1997 (id. ¶ 126). Pelton, who was born on February 16, 1961 (G.12(N) ¶ 45), took over Grace's duties as marketing development manager for pre-engineered systems (A.12(M) ¶¶ 127-28). Grace ultimately left Ansul on June 30, 1997 (Grace Aff. ¶ 147 and Exs. 20-21), after turning down an asserted "transportation representative" position that did not yet exist at Ansul and that he believed would not have had employee status at the company (G.12(N) ¶ 267).

Age Discrimination Claim

Age discrimination can be established in one of two ways: with direct or circumstantial evidence that the adverse employment actions would not have been taken but for plaintiff's age (the so-called direct method), or with the burden-shifting and inference-creating method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 ...

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