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Hemsworth v.

March 10, 2006


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff William Hemsworth II ("Hemsworth") filed a two-count suit against his former employer, ("Quotesmith"). Hemsworth alleged that Quotesmith terminated him because of his age (56) in violation of the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq. ("ADEA").*fn1 Quotesmith moved for summary judgment on all counts. For the reasons set forth below, Quotesmith's motion for summary judgment is granted.

Statement of Undisputed Facts

Plaintiff Hemsworth worked as Senior Vice President for Marketing at Quotesmith, an internet-based company, for slightly more than two years. (Quotesmith's Local Rule 56.1 Statement of Material Facts ¶ 11, hereafter "Quotesmith at ¶__"). Prior to hiring Hemsworth, the President of Quotesmith, Robert Bland ("Bland"), performed all marketing work for the company himself. When Quotesmith increased its annual marketing budget from $14 million to $20 million for the 2000 fiscal year, Bland decided to hire a marking expert. Quotesmith at ¶13, 21.

At the time Bland sought a marketing expert, Hemsworth was a retired marketing executive with over 25 years of experience in corporate marketing. Id. at ¶25. Although Hemsworth told Bland during initial employment discussions that he sought part-time employment only, Hemsworth impressed Bland to such an extent during the interview that Bland cajoled Hemsworth into taking a full-time position. Id. at ¶¶31-33. Hemsworth signed an employment contract with Quotesmith on November 24, 1999, and became the Senior Vice President of Marketing, with an annual salary of $150,000 and an annual budget of more than $20 million. Id. at ¶¶ 34-38. At the time he was hired, Hemsworth was 54 years old. Id. at ¶ 31.

Early in 2000, Hemsworth suffered a minor stroke and was hospitalized. Id. at ¶¶118-120. He returned to work full-time approximately 6 days later. Id. Hemsworth continued to work full time without medical problems through the end of the year, at which time Bland renewed Hemsworth's contract, and gave him a $30,000 raise on the basis of his impressive performance. Id. at ¶¶ 43, 122.

Quotesmith suffered financial losses during the 2000 year.*fn2 Id. at ¶44. In 2001, Quotesmith attempted to reduce costs by, among other changes, reducing the marketing budget from $20 million to $7 million, and laying off 25 members of its staff in a reduction in force ("RIF"). Id. at ¶ 52, 86.

The Quotesmith officer in charge of the RIF "did not consider the ages of any employees in the pool of employees he considered in deciding which ones to recommend for termination." Id. at ¶58. In addition to the RIF, Quotesmith terminated its Human Resources Director, and did not replace him. Id. at ¶¶63-65.

In the fall of 2001, Bland decided not to renew the annual contracts of Hemsworth or certain other Quotesmith officers. In accordance with the terms of Hemsworth's contract, which renewed annually, Bland gave Hemsworth notice in October 2001 via email that the contract would not be renewed for another year, but assured Hemsworth that he was retained. Id. at ¶ 83-85. In early 2002, Bland terminated Hemsworth's at-will employment. Id. at ¶91-92 Bland did not hire a replacement for Hemsworth, but instead resumed direction of company marketing himself, as he had been doing prior to the decision to hire Hemsworth in 1999. Id. at ¶92-94. According to Bland's deposition testimony, he made the decision to terminate Hemsworth on the basis of the company's financial deterioration, and because the company had further reduced the marketing budget to approximately $2.9 million. Id. at ¶90, 94, 21. Hemsworth alleges that he was terminated because of his age, 56 years.

Legal Standard

Summary judgment is appropriate where there is no genuine issue of material fact, such that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its initial burden, the non-moving party cannot rest on its pleadings, but must use evidentiary tools -depositions, answers to interrogatories, and affidavits that are part of the record - to show that a genuine issue of material fact remains justifying trial. Id. at 324. A material fact is a fact that is outcome-determinative under the governing law. Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). The court must construe all facts in a light most favorable to the non-moving party, and must view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, a party cannot defeat summary judgment by relying on unsubstantiated facts. See Greer v. Board of Educ. of the City of Chicago, 267 F.3d 723, 729 (7th Cir. 2001).

To establish a claim under the ADEA, a plaintiff must show that he would not have been terminated "but for" his employer's intentional age-based discrimination. 29 U.S.C.A. § 623. There are two methods by which to show discrimination under the ADEA: (i) the "direct method," whereby the plaintiff shows factual evidence of the defendant's intent to discriminate, or (ii) the indirect, "burden-shifting" method articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1219 (7th Cir. 1980) (extending McDonnell Douglas to age discrimination cases).


The Direct ...

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