751 F.2d 171 (6th Cir. 1984), 83-3845, Kendall v. Hoover Co.

Docket Nº:83-3845.
Citation:751 F.2d 171
Party Name:, 1 Fed.R.Serv.3d 802 Ovall Dale KENDALL, Plaintiff-Appellant, v. The HOOVER COMPANY, Defendant-Appellee.
Case Date:December 27, 1984
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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751 F.2d 171 (6th Cir. 1984)

, 1 Fed.R.Serv.3d 802

Ovall Dale KENDALL, Plaintiff-Appellant,


The HOOVER COMPANY, Defendant-Appellee.

No. 83-3845.

United States Court of Appeals, Sixth Circuit

December 27, 1984

Argued Oct. 22, 1984.

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Edward L. Gilbert (argued), Akron, Ohio, for plaintiff-appellant.

John D. Jolliffe, Gust Callas (argued), Canton, Ohio, for defendant-appellee.

Before EDWARDS and KEITH, Circuit Judges, and JOHNSTONE, District Judge. [*]

KEITH, Circuit Judge.

This is an appeal by the plaintiff, Ovall Dale Kendall, from an order entered by the Honorable George W. White of the United States District Court for the Northern District of Ohio granting summary judgment in favor of the defendant, the Hoover Company. Mr. Kendall also appeals from an order denying his motion for relief from judgment. For the reasons stated below, we affirm the decision.

The plaintiff was hired by the Hoover Company as a machine load engineer in 1966. Mr. Kendall served in this position for a number of years. On May 31, 1982, Mr. Kendall was advised that he was "going to be let go" and "terminated" because economic conditions required the department to reduce manpower by one person, and that he was chosen as the person to be terminated because his absenteeism was higher than others in his department. Mr. Kendall was told he would be given six months severance pay, and that there was a possibility he could be recalled within the six months. He was also told if he had not returned by November 30, 1982 (the end of the six month period), then as of that date he would be fully terminated. Mr. Kendall was contacted in September 1982, told he would be terminated as of November 30, 1982, and that all of his employment benefits would terminate as of that date. However, he was informed that he could maintain his medical benefits by retiring. Mr. Kendall elected to retire, effective December 1, 1982, in order to maintain his medical benefits.

On November 10, 1982, Mr. Kendall filed suit against the Hoover Company alleging age discrimination. On December 1, 1982, appellant received his first retirement pension check from Hoover. However, on January 3, 1983, Hoover offered Mr. Kendall his old position, reinstated him at his prior wage rate and gave him his normal annual merit increase.

On appeal, the plaintiff argues, in essence, that the grant of summary judgment in favor of the defendant was inappropriate in this case because it occurred without a hearing or notice that this matter was under consideration by the court, that summary judgment is unsuitable to civil rights cases and that the movant did not meet his burden of demonstrating there was no genuine issue as to any material fact. We find these arguments to be without merit.

We address first plaintiff's argument concerning the court's failure to hold a hearing. In the Northern District of Ohio, Rule 3.01 provides in part: "Motions, in general, shall be submitted and determined upon the motion papers hereafter referred to. Oral arguments of motions will be permitted on application and proper showing." Notwithstanding plaintiff's contention at oral argument that there were

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informal communications with the court, from the record it is indisputable that a hearing on the motion for summary judgment was never requested. Accordingly, plaintiff was not entitled to a hearing, and we find plaintiff's argument in this regard without merit. See Dayco Corporation v. Goodyear Tire & Rubber Company, 523 F.2d 389, 391-92 (6th Cir.1975) (upholding an earlier version of Rule 3.01).

Next, we address plaintiff's argument that summary judgment is unsuited to a civil rights case. It is true there is authority to the effect that "[c]ases premised on alleged violations of the constitutional or civil rights of plaintiffs frequently are unsuitable for summary judgment." 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure Sec. 2732.2 at 340 (2d ed. 1983). However, these commentators also point out that "in a discrimination case, the court may grant the motion if it determines that no evidence has been presented indicating that a discriminatory purpose was a motivating factor." Id. at 364-65; cf. McClain v. Mack Trucks, Inc., 532 F.Supp. 486, 489 (E.D.Pa.1982) (in order for plaintiff to avoid summary judgment in a Title VII action after defendant employer has articulated a nondiscriminatory reason for the firing, the plaintiff must demonstrate that the proffered reason was not the true reason for the employment decision), aff'd without published opinion, 707 F.2d 1393 (3d Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 3123, 77 L.Ed.2d 1375 (1983).

In granting the motion for summary judgment, the district court noted "the plaintiff has not opposed the motion of defendant Hoover Company for summary judgment nor the affidavit filed thereto asserting that the plaintiff was laid off because of excessive absenteeism." Joint Appendix at Document 6 (Ordering granting summary judgment). This Court has held that the conclusory allegations of a complaint cannot be relied upon to withstand a motion for summary judgment. For example, in a recent age discrimination case, Locke v. Commercial Union Insurance Co., 676 F.2d 205 (6th Cir.1982), the defendant submitted a motion for summary judgment. The plaintiff did not submit a pleading responsive to the motion and the district court granted summary judgment. In a per curiam opinion this Court stated:

[P]laintiff's failure to respond as...

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