The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Plaintiff, Gerry Donnelly, filed his Complaint (#1) against Defendants Corvest Property Trust (aka RM Realty Group), RM Realty Group, Howard and Mills, Inc., and B&G Management Company on July 1, 2008. In Count I, Plaintiff alleges he was improperly terminated in violation of the Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 621 eq seq.). In Count II, Plaintiff alleges that he was improperly terminated so as to deprive him of continued participation in Defendants' employee welfare and benefit plan under the Employee Retirement Income Security Act (ERISA) (29 U.S.C. § 1132 et seq.). Defendants filed their Amended Motion for Summary Judgment (#38) on November 23, 2009.*fn1 All responses and replies have been filed and the motion is ready for ruling. For the following reasons, Defendants' Amended Motion for Summary Judgment (#38) is DENIED.
Plaintiff was employed as the mall manager at the Village Mall in Danville, Illinois. He was 64 years old when, on January 4, 2007, he was terminated from his position. Plaintiff believes his termination to be wrongful and a violation of the ADEA, as he alleges was replaced by someone younger and less qualified. Defendants argue that Plaintiff has no ADEA claim because the company he worked for, Corvest Property Trust, employed less than the required twenty employees to qualify as an employer under the ADEA. Plaintiff counters that he did not just work for Corvest, but also for RM Realty Group, Howard and Mills, Inc., and B&M Management Company, and that these entities owned and ran the Village Mall. Plaintiff argues that all the named entities could be considered his joint employers, or also that they are in actuality a single entity, and that they are only split up into different entities so as to avoid federal discrimination laws. When the total number of employees between them is added up, it equals more than twenty, and thus Defendants qualify as an employer under ADEA.
Plaintiff was General Manager of the Village Mall. At the time of Plaintiff's termination in 2007, his employee handbook was the Corvest Property Trust employee handbook. He did not use any other handbook. He received his paychecks only from Corvest Property Trust. However, while Plaintiff was mall manager, RM Realty was managing and leasing the mall. RM Realty owned and maintained Corvest Property Trust. RM Realty was run by Robert Mills.*fn2 Plaintiff stated that Robert Mills maintained the Corvest Property Trust entity because "it was already there and he could use it." At some point during 2006 the Village Mall was sold to Howard and Mills, Inc.
Plaintiff was terminated on January 4, 2007, via e-mail. David Mills of Howard and Mills, Inc., sent Plaintiff the e-mail. After being fired, Plaintiff was telephoned by Robert Mills. Robert Mills told Plaintiff, regarding the firing, "don't pay attention to it" and that they could not fire Plaintiff because Plaintiff was "his" (meaning Robert Mills's employee) employee and not "theirs" (meaning Howard and Mills, Inc.,'s employee). Mills told Plaintiff that "they couldn't fire" him "[b]ecause [Plaintiff] didn't work for them." Plaintiff told Mills that was fine but he was still going to clean out his desk. Mills called Plaintiff later that day and said "he couldn't get ahold of anybody, but he would call [Plaintiff] Monday." Mills called Monday and told Plaintiff "there wasn't anything he could do." Plaintiff was never told why he was fired.
David Mills- Deposition Testimony
David Mills served as Project Manager for Howard and Mills, Inc., up until September 2007 (in September 2007 Howard and Mills became B&G Management, and David Mills continued to work for B&G). While working for Howard and Mills he answered to the company's owners, Brett Howard and Jeff Mills. As Project Manager, he inspected and visited the Village Mall. In that capacity, he testified that he could not promote, fire, hire, or assign job tasks to mall employees.*fn3 David Mills was generally aware of what was happening tenancy-wise and property upkeep-wise at the malls. During 2006, after the Village Mall was purchased by Howard and Mills, David learned from Jeff Mills that the mall's financial situation was poor. When asked what Howard and Mills, Inc.'s role was in the Village Mall after the 2006 purchase, David could not answer the question. He stated "I don't think they had a role." Basically, Howard and Mills, as mall owners, just wanted David Mills to make sure the property was running smoothly for their investors.
David testified that he believed Plaintiff was employed by Robert Mills of RM Realty. David was never Plaintiff's direct supervisor and had no part in his hiring. He did not even know what Plaintiff's official title was. David assumed that Plaintiff's job duties included making sure others in the mall were doing their jobs properly. In November 2006, after speaking with Robert Mills, Cindy Compton, and Lisa Massengil (Lisa Massengil had been Marketing Director at the mall), David came to the conclusion that Plaintiff was not doing his job. David's job at the mall was to focus on why the mall was not getting spaces leased out and expenses down. David testified that when something happened at the mall that needed to be addressed, such as issues with security guards, Plaintiff did not address and it and did not seem motivated in doing things to enhance the property. David was of the opinion that Plaintiff was not doing his job correctly and that Plaintiff was "just milking it and skating by until he could get retirement."
Based on a discussion he had with Robert Mills, David determined that Massengil could handle Plaintiff's job of General Manager. Robert Mills and RM Realty directed the management of the mall. Robert Mills told David that Plaintiff controlled mall expenses. Robert Mills sent an e-mail out to Brett Howard, Jeff Mills, David Mills, and Jason Linde saying that he thought Plaintiff had controlled expenses in 2006. Robert Mills told David that Plaintiff was planning on retiring. David would not have told the mall ownership about Plaintiff's desire for retirement, however he did indirectly tell Jeff Mills and Brett Howard about it. Robert and David corresponded in December 2006 concerning Plaintiff's reaction when told he would not be getting a bonus.
Jason Linde, who worked as an independent contractor for Howard and Mills, sent an e-mail on December 13, 2006, to Robert Mills, discussing how Lisa Massengil will step up and take over Plaintiff's job once Plaintiff retires. David Mills made the recommendation, after discussing it with Jeff Mills and Brett Howard, that Plaintiff should be terminated. Robert Mills did not have to follow David's recommendation to fire Plaintiff, however. David Mills sent an email to Plaintiff telling him he was fired.
Robert Mills Deposition Testimony and Affidavit Deposition
Robert Mills is the founder and president of RM Realty Group, Inc., which he established in 2004. RM Realty employs just two people, Robert Mills himself and another employee. RM Realty manages properties for commercial real estate. It manages around twelve properties. Before founding RM Realty in 2004, Robert was the Chief Executive Officer of Amerishop, and was involved in the managing of the Village Mall, which was owned by Corvest at the time. Amerishop "[oversaw] the accounting of the financial side" and also oversaw the asset physical plant and equipment side. Amerishop was responsible for the entire operation of the mall for Corvest. By December 2005 RM Realty was managing the mall for Corvest. Corvest then sold out to Bullhead in December 2005. The employees of the mall, including Plaintiff, were employees of Corvest. Howard and Mills were the new owners of the mall*fn4 , and Robert reported to ...