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TRESSEL v. COMBINED INSURANCE COMPANY OF AMERICA

March 25, 2003

HARRY K. TRESSEL, PLAINTIFF,
v.
COMBINED INSURANCE COMPANY OF AMERICA, DEFENDANT



The opinion of the court was delivered by: Ronald A. Guzman, United States District Judge

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Harry K. Tressel ("Tressel") has brought this action against his employer, Combined Insurance Company of America ("Combined"), under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and Illinois common law to promote Tressel to Assistant Vice President and to pay Tressel damages and other relief. Tressel has moved for summary judgment pursuant to Fed.R.Civ.P. ("Rule") 56, and Combined has cross-moved. For the reasons provided in this Memorandum Opinion and Order, the Court denies Tressel's motion for summaiy judgment and grants Combined's cross-motion.

FACTS

Tressel was born on November 8, 1943, and turned 59 years old in November 2002. (PL.'s LR 56.1(a)(3) ¶¶ 1-2; Def.'s LR 56.1(a)(3) ¶ 8.) He holds an A.B. degree with honors in mathematics from Bowdoin College in Maine, a Master of Actuarial Science degree from the University of Michigan Graduate School of Business Administration in Michigan, a J.D. from Northwestern School of Law in Illinois, and he is a licensed attorney. (Pl.'s LR. 56.1(a)(3) ¶¶ 9-10.) Tressel is also a Fellow of the Society of Actuaries (FSA), a Member of the American Academy of Actuaries (MAAA), a Fellow of the Canadian Institute of Actuaries (FCIA), and he is a licensed CPA. (Pl's LR. 56.1(a)(3) ¶ 9.) Defendant Combined develops, markets and sells disability, life, supplemental accident and health insurance. (Def.'s LR. 56.1(a)(3) ¶ 1.)

Tressel is currently employed by Combined and began working thereon October 6, 1986, when he was 42 years old. (Pl.'s LR 56.1(a)(3) ¶¶ 3-4, 7; Def.'s LR 56.1(a)(3) ¶ 8.) Robert Sabaj has supervised Tressel since 1987. (Def.'s LR. 56.1(a)(3) ¶ 4.) Steven E. Lippai was the head of the Actuarial Department until March 1999, in which Tressel has worked. (Def.'s LR. 56.1(a)(3) ¶¶ 4-5.) At that time, Lippai was promoted to Executive Vice President and Chief Actuarial of Combined, and John Bradley replaced him as the head of the Actuarial Department. (Def.'s LR 56.1(a)(3) ¶ 5.)

In October 1988, Tressel was promoted to Senior Staff Actuary. (Def's LR 56.1(a)(3) ¶ 10.) By May 1989, Tressel completed all exams necessary to become an FSA and was then promoted to Assistant Actuary in April 1990. (Def's LR. 56.1(a)(3) ¶¶ 12, 14.) In September 1996, after having completed the Canadian actuarial exams,( Tressel became the only one of Combined's employees to be designated as a Fellow of the Canadian Institute of Actuaries (FCIA). (Pl's LR. 56.1(a)(3) ¶¶ 19, 39; Def.'s LR. 56.1(a)(3) ¶ 29.) On December 22, 1997, he was promoted to be Combined's official Appointed Actuary in Canada, and on April 4, 1999, he was promoted to Associate Actuary, while also continuing to be the official Appointed Actuary in Canada. (Pl.'s LR. 56.1(a)(3) ¶¶ 16, 19, 33; Def.'s LR. 56.1(a)(3) ¶ 42.)

Jeffrey A. Uhl was born on May 17, 1957, and is approximately fourteen years younger than Tressel. (Pl.'s LR 56.1(a)(3) ¶ 15; Def.'s LR 56.1(a)(3) ¶ 50.) He Was hired by Combined on September 1, 1981. (Pl.'s LR. 56.1(a)(3) ¶ 15; Def.'s LR 56.1(a)(3) ¶ 50.) Uhl began his career with Combined as an Actuarial Technician and was promoted to Senior Staff Actuary in or around April 1988. (Def.'s LR. 56.1(a)(3) ¶ 50.) In November 1988, he became an FSA. (Id.) He was then promoted to Assistant Actuary and Assistant Vice President in or round April 1992, and he was then promoted to Vice President and Life Actuary in April 1996. (Id.) Uhl is the only person to have been promoted to the position of Assistant Vice President after 1992. (Def's LR 56.1(a)(3) ¶ 51.)

Peter M. Crockett, born in 1995, has been employed by Combined since October 1986. (Pl's LR. 56.1(a)(3) ¶ 16; Def's LR 56.1(a)(3) ¶ 42.) Crockett became an FSA in 1996, was promoted to Associate Actuary in April 1999, and held that position at the time of the filing of the instant complaint. (Pl.'s LR. 56.1(a)(3) ¶¶ 16-17; Def.'s LR. 56.1(a)(3) ¶¶ 42-43.)

Brian J. Moore, who was born in 1957, has also been employed by Combined since October 1986, was promoted to Associate Actuary in April 1999, and held that position at the time of the filing of the instant complaint. (Pl.'s LR. 56.1(a)(3) ¶ 16; Def's LR. 56.1(a)(3) ¶¶ 4243.) He became an FSA in 1995. (Pl.'s LR. 56.1(a)(3) ¶ 17.)

Tressel received performance evaluations while working at Combined. (Def's LR. 56.1(a)(3) ¶¶ 11, 13, 16, 17, 22-25, 33, 44-45.) In his 1992 performance evaluation he received an overall rating of "Fully Competent/Acceptable" which was a lower rating than those performance evaluations completed between 1989 to 1991. (Def.'s LR. 56.1(a)(3) ¶ 17.) Tressel received criticism in his 1992 evaluation for missing deadlines. (Id.) In response to the evaluation, Tressel sent a memorandum dated April 15, 1993, to Combined's Human Resources manager, Liz Whitte, and sent a copy of the memorandum to Lippai. (Pl.'s LR. 56.1(a)(3) ¶ 37; Def.'s LR. 56.1(a)(3) ¶ 18.) In the memo, Tressel inquired as to being promoted to a higher position, like Uhl had, and also wanted to know about what possible adverse affect his 1992 employment evaluation would have on his chance of being promoted. (Pl.'s LR. 56.1(a)(3) ¶ 35; Def's LR 56.1(a)(3) ¶ 19.) Although the 1992 employment evaluation was not changed, Lippai told Tressel, while standing near or in Tressel's office, that Tressel's route to the promotion of Assistant Vice President was to become an FCIA. (Pl.'s LR 56.1(a)(3) ¶ 36; Def's LR 56.1(a)(3) ¶¶ 20-21.)

In June and August of 1997, after having become an FCIA and having not been promoted, Tressel sent memos to Lippai requesting information about the promotion to Assistant Vice President (Pl.'s LR 56.1(a)(3) ¶¶ 40-42; Def.'s LR. 56.1(a)(3) ¶¶ 26-27.) On November 20, 1997, Tressel, then fifty-four years old, met with Lippai and Sabaj and was promoted to Appointed Actuary in Canada (Pl.'s LR. 56.1(a)(3) ¶¶ 45, 47; Def.'s LR 56.1(a)(3) ¶ 28.) At that meeting, Tressel asked about being promoted to Assistant Vice President. (Pl.'s LR. 56.1(a)(3) ¶ 46; Def's LR. 56.1(a)(3) ¶ 28.) Lippai stated that there were two conceivable promotions for Tressel: that of Assistant Vice President and Assistant Actuary or Associate Actuary. (Pl.'s LR 56.1(a)(3) ¶ 46.) Lippai stated that Tressel's promotion to Assistant Vice President was still a few years off, and he would recommend that Tressel be promoted to Associate Actuary. (Pl.'s LR. 56.1(a)(3) ¶ 46; Def's LR 56.1(a)(3) ¶ 28.)

On December 22, 1997, Tressel sent a memo to Lippai, Sabaj, and Combined's Human Resources Department alleging age discrimination as the reason for his not being promoted to Assistant Vice President. (Def.'s LR 56.1(a)(3) ¶ 30.) This was the first time Tressel came to believe that Combined was violating age discrimination law, although he was suspicious of age discrimination before then. (Def.'s LR. 56.1(a)(3) ¶ 46.)

On January 22, 1998, Nancy Gross, Combined's then-Director of Human Resources, held a meeting with Tressel and Lippai to discuss the age discrimination allegations raised in the December 22, 1997, memo. (Pl.'s LR. 56.1(a)(3) ¶ 50; Def's LR. 56.1(a)(3) ¶ 31.) Lippal stated that Tressel had not yet been promoted to Assistant Vice President because Tressel had not dealt with Combined's upper management business issues, although "he was a very good actuary technically." (Def.'s LR 56.1(a)(3) ¶ 31.)

On January 29, 1998; Lippai, Gross and Tressel met again to discuss Tressel's concern about not being promoted to Assistant Vice President (Def.'s LR 56.1(a)(3) ¶ 32.) During that meeting, Lippai stated that Tressel's promotion to Assistant Vice President was highly unlikely because the new president of the company was not familiar with Tressel's work and because Tressel lacked the broad-based business thinking that is required for such a promotion. (Id.)

On November 9, 1998, Lippai sent Tressel a memo concerning the promotion to Assistant Vice President. (Pl.'s LR. 56.1(a)(3) ¶ 37; Def's LR. 56.1(a)(3) ¶ 39.) In that memo, Lippai articulated the many criteria that are used to determine if someone should be promoted to Assistant Vice President, assuming that a business impact warrants such a need for that position. (Def.'s LR. 56.1(a)(3) ¶ 39.) One of the many factors that could be used to determine if someone should be promoted was if the person were an FCIA, because it would create an area of expertise. (Id.) In addition however, one still needed to make a positive business impact that was consistently demonstrated over a number of years. (Id.)

Tressel received his yearly performance review for the year 2000 in early 2001. (Def's LR. 56.1(a)(3) ¶ 45.) In it Tressel was criticized for timeliness issues and was asked to condense or organize internal memos so that they would be better received by an internal audience. (Id.)

On March; 12, 2001, Tressel filed an age discrimination charge against Combined with the U.S. Equal Employment Opportunity Commission ("EEOC") and was issued a Right to Sue in May 2001. (Def's LR. 56.1(a)(3) ¶¶ 47-48.) Tressel now also claims recovery under estoppel, negligent and intentional misrepresentation, inducement, deceit, breach of contract and quasi contract. (Compl. ¶ 66.) He seeks to be promoted to Assistant Vice President, granted back wages, statutory liquidated damages, attorneys' fees and other relief that is just. (Id.)

DISCUSSION

Pursuant to Rule 56(c), the court may grant summary judgment if the pleadings, answers, interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Only when there exists a genuine issue of material fact will the granting of summary judgment be inappropriate. Baron v. City of Highland Park, 195 F.3d 333, 337 (7th Cir. 1999). A genuine issue of material fact exists if a jury could return a verdict for the nonmoving party based on sufficient evidence favoring that party. Id. When the court considers a motion for summary judgment, it does so in the light most favorable to that of the non-moving party. Id. The court ...


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