Dale v. Chicago Tribune Co., 85-2577

Citation797 F.2d 458
Decision Date06 October 1986
Docket NumberNo. 85-2577,85-2577
Parties41 Fair Empl.Prac.Cas. 714, 40 Empl. Prac. Dec. P 36,332 Charles DALE, Plaintiff-Appellant, v. CHICAGO TRIBUNE COMPANY, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Marshall Patner, Law Offices of Frederic F. Brace, Jr., Chicago, Ill., for plaintiff-appellant.

John W. Powers, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant-appellee.

Before WOOD and COFFEY, Circuit Judges, and NOLAND, District Judge. *

NOLAND, District Judge.

The primary question raised by this appeal is whether the Chicago Tribune ("Tribune") violated the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. Secs. 621-634 (1982), in terminating Charles Dale ("Dale"), the plaintiff-appellant in this case. In addition to this claim, Dale alleges that his termination violated the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. Secs. 1001-1381 (1982), and an Illinois common law duty of good faith and fair dealing. Dale also filed a motion to add a named party plaintiff to the action pursuant to the representative action provision of the ADEA, 29 U.S.C. Sec. 626(b) (1982). The district court granted the Tribune's motion for summary judgment, Fed.R.Civ.P. 56, on all counts and dismissed Dale's motion to add a named party plaintiff as moot. On appeal, the Tribune requested this Court to impose sanctions upon Dale, pursuant to Rule 11 of the Federal Rules of Civil Procedure, because of the alleged speciousness of Dale's Illinois common law claim. For the reasons stated below, we affirm the judgment of the district court and decline the Tribune's invitation to impose sanctions upon Dale.

I. FACTS

Summary judgment is appropriate when there exists "no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, a court must construe the facts alleged in a light most favorable to the party opposing the motion for summary judgment. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984). Accordingly, the facts, for the purposes of this appeal, are as follows.

Dale was hired as a copywriter by the Tribune in 1956, and was eventually promoted to become manager of the Creative Services Department where he supervised sixty employees. In 1975, the Creative Services and Promotion Departments were merged upon Dale's recommendation, and Dale became the assistant manager of the new entity, entitled the "Creative Division."

Three years later, Tribune President Robert Hunt ("Hunt") and Dale reviewed the operations of the Creative Division and opined that the merger was not achieving its potential because the departments had not been functionally merged, thus the Division had an excessive number of managers. Later in that same meeting, Hunt asked Dale whether Dale was interested in becoming the Tribune's Purchasing Manager. Dale expressed his interest and formally accepted the position after some discussions with General Manager Harold Lifvendahl ("Lifvendahl"). Lifvendahl believed that the Purchasing Department had serious personnel problems and was not professionally operated. Previously, the Purchasing Manager had reported to Building Manager Bruce Cerling ("Cerling"), but Lifvendahl directed Dale to report directly to the General Manager (Lifvendahl). Dale had no prior purchasing experience notwithstanding his general managerial experience, and his appointment to the position was a lateral move with no concomitant increase in compensation.

Once settled in his new position, Dale participated in a three-day purchasing workshop and joined the Chicago Purchasing Managers Group. Within one year of assuming his new position, his department obtained responsibility for newsprint traffic, travel planning and telephone operations. Dale continued to report to Lifvendahl until Lifvendahl was transferred to Florida. Dale reported to Lifvendahl's replacement, Thomas O'Donnell ("O'Donnell"), for five months, until O'Donnell directed Dale to report to Cerling instead. Dale expressed his reservations about this change because Lifvendahl had brought Dale into the Purchasing Department to rectify the "serious personnel problems" that had existed under Cerling's supervision.

In 1981, Charles Brumback ("Brumback") became the new President of the Tribune. Brumback initiated an overall program to reduce costs and maximize profits by implementing cost and personnel reductions, and undertaking cost-saving equipment improvements. Brumback made substantial changes in the Tribune's management philosophy which were reflected in Dale's deposition:

[The existing management team was] a long, long time Tribune group. We knew one another. We worked up through the ranks together. And I think we worked well together, all with problems. You are never without problems or personality problems.

But we pretty well knew how the other person operated, and tried to work within the system. I do not think Mr. Brumback wanted that kind of a system. I think he wanted to bring in a different kind of Management Team.

And I think he would have called it, quote, a modern Management Team, one that is attuned to innovation, to new ideas, change.

And, this is an opinion, I believe Mr. Brumback did not think the Management Team at the Tribune was capable of doing this. I believe he was wrong.

Deposition 1, Charles Dale, Aug. 30, 1984, p. 96.

Dale's performance began to be criticized by Brumback soon after Brumback became Tribune President. On August 31, 1981, Dale reflected this in a letter to Lifvendahl The problem in brief, is that I think Brumback is setting the groundwork for my termination. It may come two weeks from now, or two months, but I think he's getting me programmed.

It's too long to go into all the detail, other than he's given me a major going over on everything he's questioned me about--and the things he's picked on have been minor and basically have been matters of opinion. He seems to be doing this to a whole clutch of Tribune executives and managers: things we've done in the past, are proposing now, or have planned for the future are archaic and disorganized according to his lights.

Appellant's Appendix on Appeal, Sec. 3, p. 797. Although Dale was unable to recall the nature of Brumback's criticisms with specificity in his deposition approximately three years later, Dale did indicate that some of the criticisms involved significant issues. Deposition 2, Charles Dale, Nov. 12, 1984, pp. 66-67.

On October 5, 1981, Cerling assigned Dale a number of projects designed to rectify deficiencies that Cerling perceived in Dale's performance as Purchasing Manager. Deposition 2, Charles Dale, Nov. 12, 1984, p. 79. The items included on the list involved matters of basic purchasing operation, many of which had either been discussed or initiated prior to the time Cerling assumed supervisory control of the Department.

On November 18, 1981, Cerling prefaced a memorandum to Dale with the following:

On October 5, we had a meeting at which I gave you a number of projects to be completed with dates (attached).

I thought it would be helpful if I documented other conversations and my concerns.

Since acquiring responsibilities of Purchasing and Telephone, I have observed a lack of fundamental management techniques; these are, poor organization, planning, control, leadership, direction and knowledge.

Appellant's Appendix on Appeal, Sec. 2, p. 780. The memorandum went on to list specific examples of Dale's deficiencies, focusing on his installation of a new cost-saving telephone system. Among the particular criticisms were a failure to plan adequate space; a lack of adequate consultation with the appropriate Tribune Departments; errors in the instruction manual and directory; a lack of an adequate new-employee training program; and a failure to provide for a transfer of night calls. In his deposition, Dale acknowledged the existence, but not the gravity of these problems. Deposition 2, Charles Dale, Nov. 12, 1984, pp. 106-32.

The November 18 memorandum also criticized Dale's inability to use the several computer systems employed by the Purchasing Department, as well as Dale's failure to become a "professional purchasing person" with his own "buying subjects." In essence, Dale answered these criticisms by reasoning that in his opinion it was neither efficient nor necessary for a manager to become proficient in these areas. Deposition 2, Charles Dale, Nov. 12, 1984, pp. 136-37.

In December of 1981, Cerling sent Dale a third critical memorandum detailing a number of Dale's failings as a supervisor in the Purchasing Department. Dale countered that these criticisms were either unwarranted or premature. Deposition 2, Charles Dale, Nov. 12, 1984, pp. 145-53. Finally, a similar Cerling memorandum in March of 1982 chided Dale for his failure to rectify the previously cited criticisms as well as pointing out several new examples of Dale's poor management skills. Dale acknowledged the problems listed in the March 3 memorandum, but placed the blame for those problems upon others in the Tribune organization. Deposition 3, Charles Dale, Dec. 18, 1984, pp. 5-37.

Approximately one month later, Brumback summoned Dale into his office and terminated his employment because of his failure to function efficiently as Purchasing Manager. Dale was given the option of accepting immediate termination with severance pay, or volunteering for "early retirement" upon his fifty-fifth birthday in July. Dale selected the latter.

On December 22, 1982, Dale filed an age discrimination complaint with the Equal Employment Opportunity Commission ("EEOC") identifying the Tribune as the charged party. Dale received a right to sue...

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