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UNDERWOOD v. FAIRMONT HOTEL

September 2, 2003

WALTER UNDERWOOD, NICK VELISAROPOULOS, NICK GIANNOS, DOMINGO SOTO, SAVVAS BETONDO AND ANICETO RECENDIZ, PLAINTIFFS,
v.
THE FAIRMONT HOTEL, DEFENDANT



The opinion of the court was delivered by: Suzanne Conlon, District Judge

MEMORANDUM OPINION AND ORDER

Walter Underwood ("Underwood"), Nick Velisaropoulos ("Velisaropoulos"), Nick Giannos ("Giannos"), Domingo Soto ("Soto"), Savvas Betondo ("Betondo") and Aniceto Recendiz ("Recendiz") (collectively, "plaintiffs") sue The Fairmont Hotel ("the Fairmont") for age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Betondo and Recendiz previously dismissed their claims with prejudice. The Fairmont moves for summary judgment on the remaining plaintiffs' claims pursuant to Fed.R.Civ.P. 56.

BACKGROUND

1. Local Rule 56.1

Local Rule 56.1 requires both the moving and non-moving parties to submit a statement of material facts, including "specific references to the affidavits, parts of the record, and other supporting materials relied upon," Local Rule 56.1(a)(3); Local Rule 56.1(b)(3)(B). Evidence submitted at summary judgment must be admissible at trial under the Federal Rules of Evidence, Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir.2000). All facts not properly supported by the record evidence must be disregarded, Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997).

Paragraphs 3, 10 and 31 of plaintiffs' statement of facts are premised on inadmissible hearsay. In each paragraph, plaintiffs relay purported statements of other employees about purported Page 2 statements of their supervisor, Inadmissible hearsay cannot be considered on summary judgment. Eisenstadt v. Centel Corp., 113 F.3d 738, 741 (7th Cir. 1997). Therefore, these facts must be disregarded.

II. Facts

The following facts are undisputed unless otherwise noted. Plaintiffs, who are over 40 years old, currently work at the Fairmont as full-time banquet servers. The Fairmont supplements its lull-time staff by scheduling on-call servers when necessary. As banquet servers, plaintiffs set up for banquet functions, serve guests, maintain the banquet area and clean up after a function. Since September 2001, plaintiffs have been supervised by the director of banquet operations, Tim Grob ("Grob").

In January or February 2002, Underwood asked Grob why he was scheduling the full-time servers to perform set up and clean up duties. Grob told Underwood, "if you are too old or physically unable to do the job, you could look for work somewhere else or become a part-time worker." Pl. Facts at ¶ 4. In March or April 2002, Underwood approached Grob again about the scheduling of set up and clean up duties. Grob told Underwood, "If you're too old to do the job, you can look for work somewhere else." Id at ¶ 5. On another occasion, Grob told Underwood, "If you're too old to keep up, you'll need to take some vacation time." Id at ¶ 6. Around the same time, banquet manager William Walker ("Walker") told Underwood, "you old guys, if you can't keep up, you need to look for work somewhere else. This job is for younger people." Id at ¶ 7.

In 2002, Fairmont general manager Kevin Frid ("Frid") told Underwood that "senior people have trouble adjusting to change." Id. at ¶ 11. At a wedding ceremony, Walker told Underwood, "I hear you complaining, but 1 don't see anybody quitting yet." Id. at ¶ 8. In response to Underwood's inquiry regarding the music played by the Fairmont, food and beverage director Andre Zotoff ("Zotoff") told Underwood that "the Hotel, was trying to project a younger image." Id. at ¶ Page 3

Shortly after Grob's hire in September 2001, Velisaropoulos claims Grob told him, "I thought. you were much older than that." Id. at ¶ 17. In early 2002, Velisaropoulos met with Grob to discuss scheduling and Grob said, "don't you think because you arc old you are going to have a better schedule than the other people." Id. at ¶ 18. Before a server meeting in early 2002, Grob told Velisaropoulos, "if you old guys are unable to do the assignment., you can go to the [on-call] list." Id. at ¶ 20. Sometime in 2002, Frid told Velisaropoulos, "the truth is the old and senior people, they cannot adjust to the new system we are trying to enforce." Id. at ¶ 21. According to Velisaropoulos, Grob told him during a meeting, "I don't want no more old people in my meeting." Id. at ¶ 22.

In approximately January or February 2002, Grob told Giannos, "if you're too old to do the job, go to the [on-call] list," Id at ¶ 25. On another occasion, Giannos claims that Grob told him, "if you are old stay home," and "if you arc old, why don't you quit." Def. Facts at ¶ 69. According to Giannos, Zotoff told him that the Fairmont wanted "new blood." PI. Facts at ¶ 27. On one occasion, Grob told Soto, "don't think because you are old, you are going to get better treatment than young people." Id. at ¶ 30.

Human resources director Sean Billings ("Billings") met with Underwood "many, many times" regarding his scheduling complaints. Id. at ¶ 42. Despite these meetings, Underwood never complained to Billings about any age-related comments. Underwood Dep. at p. 171. Underwood was aware of the Fairmont's harassment policy, but did not file an internal complaint.

Velisaropoulos complained to Billings approximately twenty times regarding scheduling and discipline. Giannos similarly discussed his concerns regarding scheduling and pay with Billings on approximately four to five occasions. Billings also discussed scheduling with Soto. In late February and early March 2002, plaintiffs filed discrimination charges with the Equal Employment Opportunity ...


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