31 F.3d 451 (7th Cir. 1994), 93-3651, Flaherty v. Gas Research Institute

Docket Nº:93-3651.
Citation:31 F.3d 451
Party Name:Thomas FLAHERTY, Plaintiff-Appellant, v. GAS RESEARCH INSTITUTE, Defendant-Appellee.
Case Date:July 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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31 F.3d 451 (7th Cir. 1994)

Thomas FLAHERTY, Plaintiff-Appellant,



No. 93-3651.

United States Court of Appeals, Seventh Circuit

July 28, 1994

Argued April 7, 1994.

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Roy P. Olson (argued), Friedman & Olson, Chicago, IL, for plaintiff-appellant.

Ralph A. Morris (argued), David L. Miller, Brittain, Sledz, Morris & Slovak, Thomas C. O'Laughlin, Gas Research Institute, Chicago, IL, for defendant-appellee.

Before FLAUM and ROVNER, Circuit Judges, and CRABB, District Judge. [*]


Thomas Flaherty maintains that the Gas Research Institute ("GRI") violated the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634, when it terminated his employment. Flaherty contends that his age was a determining factor in GRI's decision and that GRI was retaliating against him for suggesting to another employee that the company may be discriminating on the basis of age. The district court granted GRI's motion for summary judgment, finding that Flaherty had not suffered an "adverse employment action" under the ADEA because prior to his termination, the company had offered Flaherty

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a lateral transfer at the same salary and benefits and with comparable responsibilities, and had resorted to termination only when Flaherty declined its offer. Because we agree that Flaherty has not established a prima facie case under the ADEA, we affirm the district court's judgment. We also affirm the imposition of Fed.R.Civ.P. 11 sanctions on Flaherty's counsel for pursuing a common law retaliatory discharge claim without exhausting the administrative remedies afforded under Illinois law.


Our factual discussion is taken largely from the statements submitted by the parties pursuant to Local Rules 12(m) and 12(n) of the United States District Court for the Northern District of Illinois. But this case, like so many others of recent vintage (see Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir.1994) (compiling cases)), presents several problems under those rules. GRI submitted a lengthy Rule 12(m) statement along with its motion that fully complied with the local rule. The factual averments in GRI's statement were supported by citations to deposition transcripts, which were attached, and to affidavits of company employees. Yet in response, Flaherty submitted no affidavits, nor did he attach supplemental deposition transcripts, although his Rule 12(n) statement referenced pages that had not been provided by GRI. Thus, as the district court noted, "except in those cases where [Flaherty] fortuitously cites to deposition testimony and affidavits tendered by GRI, we are unable to verify the evidence [he] occasionally references." (R. 57 at 2 n. 1.) Equally problematic, Flaherty often asserted in response to GRI's Rule 12(m) statement that a particular fact was disputed without referencing the evidence that would show the nature of that dispute. That is insufficient, as the local rule requires the non-movant to support its disagreement by making "specific references to the affidavits, parts of the record, and other supporting materials" that allegedly establish a factual dispute. Local General Rule 12(n), Northern District of Illinois. We have repeatedly upheld this requirement, indicating that in the absence of such evidence, "district courts are not obliged in our adversary system to scour the record looking for factual disputes." Waldridge, 24 F.3d at 922; see also Valenti v. Qualex, Inc., 970 F.2d 363, 369 (7th Cir.1992). They instead may deem the fact admitted. Waldridge, 24 F.3d at 922-23. That having been said, we proceed to describe the factual background of this dispute.

GRI is a not-for-profit corporation engaged in research and development for the benefit of its natural gas industry members. It hired Flaherty as a senior scientist on May 27, 1983, when Flaherty was forty-two years of age. GRI promoted Flaherty in 1985 and again in 1987, and he ultimately became the director of its Industrial Utilization Research Group, where he had primary responsibility for the group's management and strategy planning. In April 1989, however, after an investigation into allegations that Flaherty had made racially derogatory remarks to subordinates, GRI removed Flaherty from his director's position and made him a principal scientist in charge of special projects. By this demotion, GRI sought to relieve Flaherty of his supervisory responsibilities while continuing to utilize his technical expertise. As a principal scientist, Flaherty reported to William Burnett, a GRI senior vice president.

In February 1990, Flaherty became the principal scientist in charge of program quality. Although he still reported to Burnett, Flaherty now worked daily with Irvine Solomon, who was in charge of GRI's quality program. Flaherty managed two contracts for GRI in his capacity as principal scientist for program quality. Their value was between $300,000 (GRI's estimate) and $1.25 million (Flaherty's estimate).

In November 1991, GRI's Board of Directors and its management decided to reduce expenses through a reduction in the company's work force. GRI's president, Stephen Ban, directed all vice presidents to develop staff-reduction plans within their areas of responsibility. Burnett therefore met with the vice presidents in the research and development area and determined to eliminate four existing positions from his staff by

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July 1992. Burnett and the vice presidents decided that Flaherty's program quality position would be eliminated and that he would be offered a transfer to another department. Flaherty was informed of this decision in January 1992, and he also was alerted that other departments were in need of personnel. In March or April of that year, Flaherty spoke with William Staats about a position in the Physical Sciences Research Department, and Staats offered Flaherty a part-time position. Flaherty initially indicated that he was unwilling to report to an employee with less experience and expertise, but he ultimately accepted the part-time position and agreed to report directly to Staats.

In May 1992, GRI initiated discussions with employees who were then eligible or who would soon become eligible to collect a pension and retiree medical benefits. GRI was seeking to determine whether any of these employees intended to retire in the next year. GRI explains that these discussions were part of its staff planning program, that it told each employee the company merely was attempting to anticipate staffing needs, and that it did not ask anyone to retire. GRI also did not offer retirement incentives in the course of these meetings. None of the employees approached by GRI expressed an intention to retire in 1992.

When he learned of these discussions, Flaherty asked Jan Pastryk, a director and attorney for GRI, whether the company may be engaging in some form of age discrimination. Flaherty also mentioned to Pastryk that Burnett had indicated at a recent meeting that GRI's president wanted a "younger GRI." Pastryk did not respond to Flaherty, but she passed his comments along to Thomas LaForce, GRI's Director of Human Resources.

On May 15, 1992, Flaherty received two memos from Burnett. The first reprimanded Flaherty for three comments that had angered company management. (See R. 48, Ex. B.) This memo recited that Flaherty had made "several disparaging remarks" about a former GRI employee at a managers' meeting in April 1992 and that "[s]everal of the attendees spoke up quickly to interrupt you." (Id.) Next, the memo alleged that at a May 1992 meeting of natural gas industry advisors, Flaherty told the assemblage: "I'm a principal scientist at GRI. If any of you can tell me what that means, I'd like to know." The memo explained:

I cannot imagine what would motivate you, or anyone, to stand up in front of a group of important advisors and say, in effect, that they do not know what their job is, and whatever it is, it certainly isn't important. This public statement requires that I take action regarding your job assignment.

(Id.) Finally, the memo also referenced Flaherty's comments to Pastryk:

Regarding an ongoing planning effort at GRI to determine the future plans of our employees eligible for retirement, you were reputed to have told a GRI staff member that Steve Ban and Bill Burnett want a younger organization so we have plans to offer an early retirement program. This is an outrageous and untrue statement. You certainly didn't ever hear Steve or me say this. Once again, your personal interpretation of GRI policy is way off base.

(Id.) Burnett explained that the three incidents "directly parallel the very kinds of poor judgment in your public statements that led to your earlier demotion from a director position." (Id.) 1

Burnett's second May 15 memo formally notified Flaherty that his position would be eliminated pursuant to the company's reduction in force. (See Burnett Aff. Ex. E.) Burnett explained that the company's "decisions to decentralize the quality function into each department, as well as your own public comments regarding the lack of function in this position, contributed to our choice to include this position in our staff reduction actions." (Id.) 2 Burnett also noted that

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Flaherty would not be considered for a management position at GRI "until a sustained period of good judgment is displayed in your remarks and actions." (Id.) But Burnett indicated that he intended to provide Flaherty's name to several GRI department directors who may have program management positions available. The memo stated that Flaherty's termination would become effective on July 15 if he had not secured a position and that Flaherty would be eligible...

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