Maier v. Lucent Technologies, Inc., s. 96-2902

Decision Date11 August 1997
Docket NumberNos. 96-2902,96-3040,s. 96-2902
Citation120 F.3d 730
Parties71 Empl. Prac. Dec. P 44,979, 13 IER Cases 161 Kenneth J. MAIER, Plaintiff-Appellant, Cross-Appellee, v. LUCENT TECHNOLOGIES, INC., Defendant-Appellee, Cross-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

James W. Holman, Marsha H. Cellucci (argued), Cellucci, Yacobellis & Holman, Naperville, IL, for plaintiff-appellant, cross-appellee.

Charles C. Jackson (argued), Gerald L. Pauling, II, Ugne T. Adams, Andrew M. Altschul, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, Robert C. Roos, Jr., Lucent Technologies, Inc., Law Dept., Chicago, IL, for defendant-appellee, cross-appellant.

Before RIPPLE, MANION and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

Kenneth Maier filed a breach of contract action in Illinois state court against his former employer, AT & T Corporation. 1 AT & T removed the case to federal district court based on the parties' diversity of citizenship, and Maier amended his complaint to add an Age Discrimination in Employment Act claim. See 29 U.S.C. §§ 621 et seq. The district court granted AT & T's motion for summary judgment with respect to the

ADEA claim, but allowed the state law claim to go to trial. After a trial, the jury found that AT & T had breached Mr. Maier's employment contract and awarded him $75,000. Both parties appeal. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND
A. Facts

Mr. Maier began working for Illinois Bell in March 1967. In 1984, he joined AT & T's Computer Systems Division ("CSD"). In 1989, he became a divisional manager, a D-band manager. 2 In late 1990 or early 1991, AT & T announced its planned merger with National Cash Register Corporation ("NCR"), a major computer company. This merger necessitated closing down the CSD. Mr. Maier was one of about 370 management employees appointed to a transition team to make sure that the merger with NCR was a smooth one. In exchange for remaining with the CSD and supervising the transition, AT & T promised Maier in a letter that, after the transition, he would have the opportunity to have a choice in his next assignment, and that his next assignment would be equivalent to or higher than his current salary grade. 3 After Mr. Maier completed his service on the transition team in April 1992, AT & T continued to pay Mr. Maier's salary and benefits, in addition to providing a number of other support services, while he looked for another position of at least a D-band level within AT & T. From October 1992 to June 1993, Mr. Maier worked on a temporary basis for AT & T's Chief Information Officer, an officer of the corporation, in New Jersey. Although most of the transition team members were able to be placed in new positions of at least the same salary grade through their own search efforts, by October 1992 some still had not found a place. Therefore, in late 1992, AT & T instituted a plan to place these remaining transition team members. Under the plan, each team member who had not found a new position would be given a job offer, his "allocation." The team member would then have one week either to accept or to reject the job. If the individual refused the job, he would have another 60 days to find a job within the organization or would be separated from the company. In March 1994, AT & T presented Mr. Maier with his allocation offer. Mr. Maier was offered a B-band position. The company had agreed, however, to protect Mr. Maier's salary grade for two years. His salary and personnel records would reflect his D-level status. Mr. Maier, without finding out the responsibilities and duties of the job, refused the position and was thus given 60 days to find another position. After this 60-day period, he selected a severance package that would keep him on the AT & T payroll somewhat longer, during which time he continued to look for another position within AT & T. He was not successful in this endeavor and was released in January 1995.

B. District Court Proceedings

Mr. Maier filed suit in DuPage County Circuit Court, alleging that AT & T had The district court granted that motion in part. It granted summary judgment to AT & T on the issue of age discrimination, determining that Mr. Maier had not presented any evidence that younger similarly-situated employees had been treated more favorably. He therefore had failed to establish a prima facie case.

breached its employment contract to him, the Transition Team Letter. AT & T removed the case to federal district court based on the parties' diversity of citizenship, and Mr. Maier amended his complaint to add an ADEA claim. AT & T filed a motion for summary judgment.

The district court denied AT & T's motion for summary judgment, however, on the breach of contract claim. It found that there was a question of fact as to whether the company had met its promise to provide a choice of D-band or higher positions. Prior to trial, the court granted AT & T's motion in limine, based on Illinois law, to exclude all evidence of damages that would occur after the date of trial. After a five-day trial, the jury returned a verdict in Mr. Maier's favor for $75,000. The district court later denied AT & T's post-trial motion for judgment as a matter of law and for a new trial. Both parties appealed.

II DISCUSSION

Mr. Maier submits that the district court's grant of partial summary judgment to AT & T on the ADEA claim was erroneous and that a number of other evidentiary rulings of the district court were unsound. He also appeals the jury's verdict as inadequate, in spite of his failure to raise the issue before the district court. AT & T cross-appeals the district court's ruling that the Transition Team Letter was an enforceable contract and its denial of AT & T's post-trial motion. We shall address these issues in turn.

A. Age Discrimination Claim

We review the district court's grant of summary judgment de novo; we draw all reasonable inferences supported by the record in favor of the non-moving party. Denisi v. Dominick's Finer Foods, Inc., 99 F.3d 860, 864 (7th Cir.1996). Only if there is no genuine issue of material fact will we uphold the district court's grant of summary judgment. Id.

Under the ADEA, employers are prohibited from discriminating against employees at least forty years old based on their age. 29 U.S.C. §§ 621(b), 631(a). In order to establish an ADEA prima facie case, Mr. Maier must show that he was within the protected age group, that he performed his job satisfactorily, that he suffered an adverse employment action and that substantially younger employees were treated more favorably. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, ----, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996); Denisi, 99 F.3d at 864. Only the last two elements were in dispute in the district court.

In response to AT & T's motion for summary judgment (on both the ADEA claim and on the state-law claim), Mr. Maier stated:

The demographics indicate that the Transition Team was made up of fifty nine percent (59%) of persons within the protected class. Of those persons subject to allocation[,] that class was made up of eighty nine percent (89%) persons within the protected class. Further, only three (3) D Band level employees were subject to allocation and all three (3) ultimately were terminated.... All three (3) D Bands were within the protected class.

Clearly, the policies of AT & T have had disparate impact upon those in the protected class. This impact is sufficient enough to make out and prove a prima facie case for age discrimination.

R.29 at 17-18 (emphasis added). Not once in his opposition brief did Mr. Maier contend that his claim was one for disparate treatment. Mr. Maier argued in his response that the "disparate impact" caused by the allocation policy is "sufficient enough to make out and prove a prima facie case." Id.

We have held that such a theory of liability is not cognizable under the ADEA. 4 Mr. Maier concedes as much in his brief to this court. 5 In his response to AT & T's motion for summary judgment, however, Mr. Maier provided only a statistically-based disparate impact theory and no more. He did not offer any "evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion." O'Connor, 517 U.S. at ----, 116 S.Ct. at 1310 (brackets, ellipsis and emphasis in original) (internal quotation and citation omitted). He did not provide any evidence of AT & T's treatment of substantially younger employees who were similarly situated to him, whether that treatment was better, worse or equal. Without any such evidence, Mr. Maier cannot prevail on his ADEA claim, and we must uphold the district court's grant of partial summary judgment.

Mr. Maier also submits that the district court's decision not to allow him to supplement his response to AT & T's summary judgment motion was an abuse of discretion. More than five weeks after his response to AT & T's motion was due and more than a month after AT & T filed its reply to his response, Mr. Maier filed a motion to supplement his response. Attached to that motion was an expert's report and opinion based on the same statistics on which Mr. Maier had based his own opinion in his original response to AT & T's summary judgment motion. He urged the district court to accept the new materials despite their tardiness because of the difficult time that he had in finding an expert to perform the statistical analysis.

The district court denied his motion. The court found that the materials Mr. Maier submitted were not evidence that would be admissible at trial under Federal Rule of Civil Procedure 56(c). Also, Mr. Maier's expert had not been disclosed to the defendant in a timely fashion. Finally, the plaintiff had not sought to amend his Rule 12 statement or his response. 6 We review the district court's...

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