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May 12, 2005.


The opinion of the court was delivered by: RONALD GUZMAN, District Judge


Matthew Max and the U.S. Equal Employment Opportunity Commission ("EEOC") have sued Maytag Corp. for age discrimination in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). Before this Court is Maytag's motion to dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1)*fn1 and 12(b)(6). For the reasons provided in this Memorandum Opinion and Order, the Court denies the motion.


  Max began working for Maytag on or about January 1, 1970. (Consol. Am. Compl. ¶ 7.) In March 1970, Maytag assigned Max to serve as District Manager in a sales district in Kalamazoo, Michigan. (Id. ¶ 7.) Between 1970 and 1989, Max was awarded larger sales districts and annually rated as fully meeting requirements and expectations. (Id. ¶ 8.) In November 1989, Max was promoted to Regional Manager for the Cleveland Region. (Id. ¶ 9.) In October 1994, Max was again promoted, this time to Regional Manager for the Chicago Region. (Id. ¶ 10.) From 1970 through January 1999, Max received annual ratings of fully meeting requirements. (Id. ¶¶ 8, 9, 14.)

  In April 1999, Maytag began a reorganization, reducing the number of regions from twenty-two to nine. (Id. ¶ 16.) Also, as part of this reorganization, the position of Zone Manager was created to serve between Regional Manager and District Manager. (Id.) Max interviewed, but was not selected, for the Regional Manager position. (Id. ¶ 17.) Max was assigned as Zone Manager. (Id.)

  Of the people selected as Regional Managers, one was aged 33, another 35, two others 44, two others 45, one 46, one 49, and one over 50. (Id. ¶ 18.) Max was 57 at the time of the reorganization. (Id.)

  Under the 1999 reorganization, Greg Hewitt, aged 33, was given the position of Regional Manager for Chicago. (Id. ¶ 23.) Max along with Roger Evenson, aged 52, served as Zone Managers under Hewitt. (Id.) Even though Max's region achieved its sales quota, Hewitt and Heyer placed Max on a performance improvement plan ("PIP") in June 1999. (Id. ¶ 27.)

  Hewitt informed Max that the reason for his being put on a PIP was due to a company-wide initiative. (Id. ¶ 30.) Plaintiffs allege that there was no company-wide initiative. (Id. ¶ 31.) Hewitt ended Max's PIP in December 1999. (Id. ¶ 33.) Plaintiffs further allege that Hewitt and Heyer made a series of discriminating comments regarding age in 1999. (Id. ¶ 29.)

  In 1999, Max earned a 25% bonus, passing his individual goal and achieving sales growth at a higher rate than the company rate. (Id. ¶ 37.) In a performance review for that same year, Max was rated as partially meeting requirements and expectations. (Id.)

  In mid-2000, there was another reorganization in which the nine regions were divided into four customer support centers. (Id. ¶ 45.) The position of Zone Manager was eliminated. (Id.) Each customer center had two Regional Managers. (Id.) Max was not interviewed for either of the Regional Manager positions and was switched to District Manager with a 25% reduction in salary. (Id. ¶ 47.) Max and Evenson were the only Zone Managers to receive a reduction in salary. In 2000, Max received a rating of fully meeting requirements and expectations. (Id. ¶ 48.)

  In early 2001, Maytag went through yet another reorganization, and this time it went back to having twenty to twenty-one regions, with each region having a Regional Manager. (Id. ¶ 52.) Max applied, but was not interviewed, for any of the Regional Manager positions. (Id. ¶¶ 53-54.) The majority of new Regional Managers were substantially younger than Max. (Id. ¶ 57.) Max remained in the District Manager position, and he was rated as fully meeting requirements in 2001, 2002, and 2003. (Id. ¶ 60.)

  On May 18, 2001, Max filed a charge of age discrimination with the EEOC. Max's charge stated:
I was hired by the above Respondent on January 1, 1970, as District Manager. In 1989, I was promoted to Regional Manager. In April 1999, I was demoted to Zone Manager, without change in pay, due to restructuring. In June 2000, it was announced that the Zone Manager position would be eliminated. On July 21, 2000, I inquired about a Regional Manager Field Operations position, if any were available; or a Maytag Home Appliance Center District Manager position. On or about August 1, 2000, I was demoted to District Manager over retail accounts with a substantial reduction in salary. On January 15, 2001, I applied for a regional Manager Position. I was not given an interview, consequently, I was not selected for any of the available positions. I believe I was discriminated against because of my age, 59 (date of birth: September 7, 1941), in violation of the Age Discrimination in Employment Act of 1967, as amended. (Mot. Dismiss, Ex. A, EEOC Charge at 2.)
  Plaintiffs allege Maytag discriminated against Max and a class of employees over the age of fifty by: (1) demoting them from Regional Sales Managers to Zone Managers; (2) failing to reinstate them to Regional Sales Managers; and (3) demoting them to District Manager. (Consol. Am. Compl. ¶ 63.) Plaintiffs seek an injunction prohibiting Maytag from participating in age-based discrimination regarding promotions, demotions, policies, practices and programs. (Id. ¶ 65.) Further, Max and putative class members seek front pay, back pay, prejudgment interest, lost benefits, liquidated damages, as well as attorney's fees and costs. (Id.)


  On a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept as true all well-pleaded allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Stachon v. United Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir. 2000). Dismissal should be granted only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). First, Maytag argues that the EEOC's claims for individual ...

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