The opinion of the court was delivered by: Richard Mills, District Judge.
In law, it is good policy to never plead what you need not,
lest you oblige yourself to prove what you can not.
Abraham Lincoln, Letter to Usher F. Linder (Feb. 20, 1848),
in II COMPLETE WORKS OF ABRAHAM LINCOLN, 3 (John G. Nicolay
and Johns Hay, eds., New York: Francis D. Tandy Co., 1894).
Access Cash International, Inc. ("Access Cash"), is a
Minnesota based company engaging in the business of providing
self-service financial products, including ATM's, transaction
process, and management. Jack E. Wagner, Jr., began working for
Access Cash as a commissioned salesperson on October 15, 1997.
As part of his compensation package, Wagner received bi-weekly
advances of $1,500.00 against his commissions from Access Cash.
Between October 15, 1997, and February 15, 1999, Access Cash
advanced to Wagner $54,150.00. However, during this same period
of time, Wagner only earned $17,466.66 in commissions which were
credited against his advances.
On February 15, 1999, Access Cash terminated Wagner's
employment. Wagner was 46 years of age at the time. Thereafter,
Access Cash hired D.J. Schultz to replace Wagner. Schultz was 23
years of age at the time he was hired by Access Cash.
On October 31, 2000, Wagner filed a two Count Complaint in
this Court against Access Cash. Count I alleges that Access Cash
discriminated against Wagner by firing him because of his age in
violation of the Age Discrimination in Employment Act (ADEA).
29 U.S.C. § 621 et seq. Count II alleges that Access Cash
violated the Consolidated Omnibus Budget Reconciliation Act
(COBRA), 29 U.S.C. § 1161(a) et seq., by failing to provide
notice to Wagner of his right to continue his health insurance
coverage upon his termination. Access Cash has now moved,
pursuant to Federal Rule of Civil Procedure 56(c), for
summary judgment on both of Wagner's claims against it.
II. STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.Pro.
56(c); see Ruiz-Rivera v. Moyer, 70 F.3d 498, 500-01 (7th Cir.
1995). The moving party has the burden of providing proper
documentary evidence to show the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of
material fact exists when "there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In determining whether a genuine issue of material fact
exists, the Court must consider the evidence in the light most
favorable to the nonmoving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once
the moving party has met its burden, the opposing party must
come forward with specific evidence, not mere allegations or
denials of the pleadings, which demonstrates that there is a
genuine issue for trial. Gracia v. Volvo Europa Truck, N.V.,
112 F.3d 291, 294 (7th Cir. 1997).
In order for Wagner to establish that Access Cash violated the
ADEA, he must show that his age was a determining factor in
Access Cash's decision to fire him. Wolf v. Buss (America),
Inc., 77 F.3d 914, 919 (7th Cir. 1996); Smith v. Great Am.
Restaurants, Inc., 969 F.2d 430, 434 (7th Cir. 1992). Wagner
need not prove that his age was the sole reason for Access
Cash's decision; rather, he need only to show that "but for"
Access Cash's motive to discriminate against him based upon his
age, he would not have been subjected to an adverse employment
action. Wolf, 77 F.3d at 919; La Montagne v. Am. Convenience
Prods., Inc., 750 F.2d 1405, 1409 (7th Cir. 1984). Wagner
may prove age discrimination in one of two different
ways. [H]e may try to meet h[is] burden head on by
presenting direct or circumstantial evidence that age
was the determining factor in h[is] discharge. Or, as
is more common, he may utilize the indirect,
burden-shifting method of proof for Title VII cases
originally set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 ...