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WAGNER v. ACCESS CASH INTERN. INC.

July 30, 2002

JACK E. WAGNER, JR., PLAINTIFF,
V.
ACCESS CASH INTERNATIONAL, INC., DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge.

OPINION

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).

I. BACKGROUND

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).

III. ANALYSIS

A. ADEA CLAIM

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 ...

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