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Coabuono v. Tri-Star Cabinet & Top Co.

September 8, 2010


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff Clark Colabuono sued defendant Tri-Star Cabinet & Top Company, Inc. in a two-count complaint, alleging violations of the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621, et seq., and the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132, et seq., as a result of defendant's termination of plaintiff's employment. Defendant has moved for summary judgment on both claims. Based on the parties' related filings and attachments, the following motions are now before the court: 1) defendant's motion for summary judgment on both counts; (2) plaintiff's motion to strike defendant's affidavits in support of its motion for summary judgment; and (3) plaintiff's motion to strike portions of defendant's reply brief materials or alternatively, for leave to file a sur-response. For the reasons discussed below, the court grants defendant's motion for summary judgment, denies plaintiff's motion to strike defendant's affidavits, and denies plaintiff's motion to strike portions of defendant's reply brief or for leave to file a sur-response.


Plaintiff Clark Colabuono worked for defendant Tri-Star, a company that builds custom cabinets and countertops for residential homes, for almost twenty-two years. In the second half of 2006, the economic downturn took its toll on defendant, which began to experience a substantial decline in orders for its products, and it began to look for ways to cut back. Beginning in December 2006, defendant eliminated overtime, reduced its employees' forty-hour-plus workweek to a maximum of a four-day workweek, and abolished the two mandatory Saturday workdays each month that were previously needed to meet its production requirements.

The next month, defendant began the first of what turned out to be several rounds of employee layoffs. As part of the initial round of layoffs, defendant's plant manager instructed Denny DelSasso, foreman of the specials department, to identify employees to be laid off in his department. DelSasso chose plaintiff as the first target of the inevitable layoffs. DelSasso testified that he based this decision on his own intimate knowledge of plaintiff's performance (or lack thereof), which is also evident in plaintiff's performance reviews, attendance charts, and disciplinary record. These all show that plaintiff had significant performance and attendance problems that had previously come to the attention of Tri-Star management. Plaintiff, who was then fifty-three years old, thus lost his job in this first wave of layoffs, along with a number of other employees across defendant's various departments.

Defendant required its employees to fill out self-evaluations as well as asking supervisors (in plaintiff's case, DelSasso) to complete evaluations for their workers. Both DelSasso's evaluations and plaintiff's own self-evaluations state that he was sometimes late or absent and distracted others while working, and reflect that he exhibited desirable performance characteristics only "sometimes" or "usually" as opposed to "all the time." Plaintiff's last performance review (completed by DelSasso) indicated that he was "sometimes" late or absent and noted that he had missed time due to health problems and family needs, and that "[t]ime off should improve this coming year." Further, plaintiff's personnel file contains a June 2005 written warning citing him for "poor quality of work" and an October 2005 written warning citing him for "lack of production." Finally, company calendars reveal plaintiff's increasingly poor attendance record. His 2005 calendar reveals that he was late to work on 26 days, worked partial days on 19 separate occasions, and was absent on 16 days, for a total of 61 days with attendance issues. It got worse in 2006: in his final year at Tri-Star, plaintiff was at least one hour late to work 34 days (on many of those days he was two or three hours late), worked 19 partial days, and was absent on 28 days, for a total of 81 days on which he had significant attendance problems.

Until plaintiff was laid off, the specials department had nine employees. Layoffs and reassignments have reduced that number to four, and defendant has not hired any new employees in that department. The remaining special department employees were born in 1953, 1967, 1968, and 1969; those laid off in 2007 and 2008, respectively, were born in 1953 (plaintiff) and 1974; those who, since 2005, have been reassigned to a different department were born in 1960 and 1978. The rest of the company has been similarly affected by layoffs, and while some recently-terminated employees have been recalled or reassigned for short-term work, none has been permanently re-hired.


I. Legal Standard

A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). The moving party bears the initial burden of pointing out the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met that burden, the nonmoving party must go beyond the pleadings and "set forth specific facts showing there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-23 ("In our view, the plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial."). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).

A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). This standard is applied with added rigor in employment discrimination cases, where issues of intent and credibility often dominate. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993) (citations omitted). The nonmoving party must, however, "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50.

II. Count I: Violation of the ADEA

Plaintiff alleges that defendant violated the ADEA when it terminated his employment on January 5, 2007. The ADEA makes it unlawful for an employer to discriminate against an employee "because of" the employee's age, language that the Supreme Court has interpreted to mean that a plaintiff must show his age was the but-for cause of the challenged employment action. 29 U.S.C. § 623(a); Gross v. FBL Fin. Servs., Inc., - U.S. -, 129 S.Ct. 2343, 2350-52 (2009); Mach v. Will County Sheriff, 580 F.3d 495, 498 (7th Cir. 2009). An ADEA plaintiff has two ways to avoid summary judgment: the so-called direct and indirect methods of proof. Colabuono asserts that he can use both methods of proof to establish his prima facie case; through neither of these methods, though, can his ADEA claim survive summary judgment.

To prove an ADEA claim using the direct method, a plaintiff may supply either "direct evidence, such as near-admissions by the employer, [or] more attenuated circumstantial evidence that suggests discrimination albeit through a longer chain of inferences." Faas v. Sears, Roebuck & Co., 532 F.3d 633, 641 (7th Cir. 2008) (internal quotations and citations omitted). Because he cannot point to direct evidence, such as an admission or near-admission that defendant's actions were based on his age, plaintiff argues that "[t]he circumstances of [his] discharge do present a mosaic that smells of discriminatory intent." That single sentence is plaintiff's entire argument in support of the direct method of proof. This argument is thereby waived. It is not the court's obligation to research and construct a party's argument for him. See 330 W. Hubbard Restaurant Corp. v. United States, 203 F.3d 990, 997 (7th Cir. 2000) ("A party's failure to address or develop a claim in its opening brief constitutes a waiver of that claim, for it is not the obligation of this court to research and construct the legal arguments open to the parties, especially when they are represented by counsel.") (internal citations and quotations omitted); Perry v. Sullivan, 207 F.3d 379, 383 (7th ...

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