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Petrocelly v. Montage Media Corp.

July 18, 2006


The opinion of the court was delivered by: Judge Blanche M. Manning


At age 50, plaintiff Richard Petrocelly embarked on a new career-selling advertising in magazines aimed at dentists. Although he had no sales experience, he had spent years in the dental industry, which he figured gave him an advantage. But at age 52, Petrocelly lost his job. His employer, defendant Montage Media Corporation, told him he was fired for poor sales, but Petrocelly contends the real reason was his age. He sued Montage for age discrimination under the Age Discrimination in Employment Act ("the ADEA"), see 29 U.S.C. § 626, et seq., as well as breach of contract and violation of Illinois' Wages Payment and Collection Act, claims based upon state law.

Montage has filed a motion for partial summary judgment on Petrocelly's claim of age discrimination. In the event the court grants summary judgment on the age discrimination claim, Montage also asks the court to dismiss Petrocelly's state law claims because the court will no longer have supplemental jurisdiction over them. The court agrees with Montage that Petrocelly cannot establish a prima facie case of discrimination, and therefore grants the motion for partial summary judgment and dismisses without prejudice the remaining state law claims.


Montage hired Petrocelly as its director of national accounts on February 17, 2001, shortly after his 50th birthday. He signed a two-year employment contract. Under the terms of the contract, he earned $95,000 a year in salary, and had the chance to earn commissions if his sales exceeded 85% of the annual sales plan Montage set for him, which for 2001 was $830,267. Prior to working at Montage, Petrocelly spent more than 20 years working in various capacities within the dental industry. His expertise in the dental industry is what led Montage to hire him.

The parties have not addressed Petrocelly's performance during his first year, but at least by the second year he consistently failed to meet his plan each quarter of 2002. His sales during the fourth quarter of 2002 reached only 55% of his quarterly plan. Petrocelly continued to fall short of his plan during the first quarter of 2003, during which sales reached only 54%.

The original two-year term of Petrocelly's employment contract ended February 17, 2003. The parties dispute what became of the contract. Petrocelly contends in his affidavit that Montage confirmed extending his contract in writing, but he did not attach the written extension to his affidavit. In contrast, Montage contends that Petrocelly's contract expired and that he continued working as an at-will employee. Whatever the case, it is undisputed that during the second quarter of 2003, Petrocelly's sales improved, but at 82% still fell short of his plan. As a result, Montage moved him to the position of senior account manager, and reduced his salary to $82,500. Montage memorialized its decision in a letter to Petrocelly, in which it described the "sales situation" during Petrocelly's fourth quarter of 2002 and first quarter of 2003 as "precaraious" and "deteriorating." Petrocelly disputes that his performance during that period was "precarious" and "deteriorating," but agrees that his sales were "not good."

Although Petrocelly came close to achieving 85% of his plan during the second quarter of 2003, during the third quarter he fell further behind, achieving only 67%. By August 2003, Montage had decided to terminate Petrocelly. In a letter to Petrocelly, Montage wrote that it was terminating him because "the level of quarterly sales has been declining and the gap between actual sales performance and plan seems to be growing."

Following his termination, Petrocelly cross-filed with the EEOC and the Illinois Department of Human Rights a charge of discrimination in which he alleged that he was terminated for declining sales even though younger peers who had worse sales were not fired. The EEOC issued Petrocelly a right-to-sue letter, and Petrocelly, in turn, filed this suit.


1. Summary Judgment Standard

Summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of any material fact." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Valenti v. Qualex, Inc., 970 F.2d 363, 365 (7th Cir. 1992), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Moreover, a court may grant a motion for summary judgment only when the record shows that a reasonable jury could not find for the nonmoving party. Valenti, 970 F.2d at 365; Anderson, 477 U.S. at 248.

Accordingly, the nonmoving party may withstand summary judgment only by showing that a dispute over a "genuine" material fact exists; that is, the evidence is such that a reasonable jury could render a verdict for the nonmoving party. Anderson, 477 U.S. at 248. The nonmoving party may not merely rest upon the allegations or details in his pleading, but instead, must set forth specific facts ...

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