Ackerman v. Diamond Shamrock Corp.

• Decision Date: 01 February 1982
• Docket Number: No. 80-3578,80-3578
• Parties: 27 Fair Empl.Prac.Cas. 1563, 28 Empl. Prac. Dec. P 32,408 Edward ACKERMAN, Plaintiff-Appellant, v. DIAMOND SHAMROCK CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 66

670 F.2d 66

27 Fair Empl.Prac.Cas. 1563,

28 Empl. Prac. Dec. P 32,408

Edward ACKERMAN, Plaintiff-Appellant, v. DIAMOND SHAMROCK CORPORATION, Defendant-Appellee.

No. 80-3578.

United States Court of Appeals Sixth Circuit.

Argued Dec. 10, 1981.

Decided Feb. 1, 1982.

Willard E. Bartel, Miller, Stillman & Bartel, Cleveland, Ohio, for plaintiff-appellant.

John D. O'Brien, Brian F. Toohey, Cleveland, Ohio, for defendant-appellee.

Before WEICK ^* and LIVELY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

Edward Ackerman appeals from a summary judgment in favor of his defendant employer in an action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. Appellant contends that he raised genuine issues of material fact in support of his claim of age discrimination and, therefore, summary judgment was improper. We affirm the summary judgment rendered by Senior District Judge Ben C. Green.

Appellant was an employee of the appellee Diamond Shamrock Corporation (Diamond) and predecessor corporations for 23 years. In 1978, he held the title of Director of Corporate Communications. On August 31, 1978, at a meeting with his superior, he was informed that his job was to be eliminated in the corporate reorganization, and that his duties were to be divided between two employees who had been reporting to him.

Since Ackerman's job was to be eliminated, his superior suggested that he take early retirement. He was handed a packet of papers which contained a document labeled "Internal Communication." This document listed organizational changes "which are effective immediately." The changes were that Ackerman had "elected to take early retirement effective January 1, 1979," and that in the interim he was assigned "Corporate communications projects." The document went on to list the assignments of two of Ackerman's former subordinates. These men were reassigned to different departments of the corporation, and their responsibilities included all the duties formerly performed by Ackerman. At that time one of these men was in his late thirties and the other was in his early fifties. Ackerman was 59.

Another document in the packet was a memorandum detailing the terms of Ackerman's retirement. The retirement agreement would give Ackerman much more than the benefits to which he would be entitled if he simply were terminated. Under the terms of the proposed agreement, he was to receive approximately $100,000 more than the amount provided under Diamond's normal separation policies. The agreement also contained other miscellaneous benefits.

Ackerman did not sign the agreement immediately. Although he states now that he never consulted an attorney about the proposed agreement, the record contains evidence that at the time he was given the proposal Ackerman stated that he wanted his lawyer to review it. He later stated before he had signed the agreement that his attorney was reviewing the retirement plan.

Almost a month later, on September 28, 1978, Ackerman signed the retirement agreement. In his deposition testimony, he said he signed the agreement "of his own free will;" that he understood the provisions of the agreement; and that Diamond had lived up to the terms of the agreement. Ackerman now is receiving payments under the agreement. In addition to the benefits provided in the original agreement, Ackerman received a $7,200 bonus for 1978; he also asked and received out placement counseling and job hunting expenses.

In granting summary judgment, the district judge did not rely on any evidence concerning Ackerman's job performance. There is evidence in the record, however, that the quality of Ackerman's work, in addition to the corporate decision to reorganize, influenced Diamond's decision to request him to take early retirement. His job performance had been the subject of an in-house investigation. The result of the investigation was a recommendation that Ackerman should not remain in charge of Corporate Communications. The report of the investigation indicated that Ackerman was a good individual performer, but he had a distaste for "people problems," and was unable to delegate responsibility effectively. In addition, the problems with his job performance were exacerbated by the use of alcohol. In his own deposition Ackerman admitted that he sometimes indulged in the proverbial "three martini lunch." On at least two occasions, his overindulgence in alcohol was the catalyst in embarrassing incidents during corporate dinner meetings.

Ackerman asserts that he knew nothing of the investigation of his performance. He thought that "everything was going swell." He states that when he was handed the packet of documents, his response was one of shock and disbelief. He asserts that he was given no alternative to taking early retirement, and that he thought that he had no choice but to sign the agreement or else receive nothing. He contends that, in effect, his suggested early retirement was nothing more than a discharge. He states that he can think of no reason for his discharge other than his age.

I.

On February 19, 1979, Ackerman notified the Department of Labor that he intended to file suit against Diamond for violating the ADEA. On July 20, he filed suit in an Ohio state court. Diamond removed the action to district court. Upon the completion of discovery, Diamond moved for summary judgment on the grounds that (1) Ackerman voluntarily retired from employment and (2) no genuine issue of material fact was raised to support a claim that age played a role in Diamond's decision to suggest early retirement. On July 16, 1980, the district judge granted the motion for summary judgment, primarily on the ground that Ackerman had signed the agreement voluntarily and, therefore, had not been "discharged," under the terms of the ADEA.

At the heart of Ackerman's claim of age discrimination, and of his attack on the district judge's decision, is his reliance upon a standard for establishing a prima facie case of discrimination paralleling that set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Citing decisions of the Fifth Circuit, he argues that he had raised genuine issues of material fact as to whether he has established a prima facie case of discrimination.

As modified to fit age discrimination cases, the McDonnell Douglas test for making out a prima facie case of discrimination requires that a plaintiff demonstrate that (1) he was a member of the protected class; (2) he was discharged; (3) he was qualified for the position; and (4) he was replaced by a younger person. See Marshall v. Goodyear Tire and Rubber Co., 554 F.2d 730, 735 (5th Cir. 1977). The district judge found that Ackerman met requirements one, three and four, but that he had not satisfied number two. Judge Green found no evidence in the record, other than Ackerman's "conclusory" allegations, supporting the argument that Ackerman did not sign the agreement voluntarily. Judge Green reasoned that retirement of Ackerman was voluntary and, therefore, he was not discharged. Since Ackerman was not discharged, he could not establish the second requirement of the above described standard for a prima facie case.

Ackerman contends that he has raised a genuine issue of material fact as to whether his retirement was voluntary. He claims that the circumstances surrounding the request of Diamond for his early retirement and his statement that he felt "that he had no other alternative than to sign the agreement and that if he failed to sign, he would receive nothing," create an issue of material fact which precludes summary judgment.

While summary judgment often is inappropriate to dispose of cases involving issues of intent and motive, the moving party has the right to judgment without the expense of a trial when there are no issues of fact left for the trier of fact to determine. See First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 284-88, 88 S.Ct. 1575, 1590-93, 20 L.Ed.2d 569, (1968). Ackerman admitted that he signed the document of his own free will. The signed document states that he and Diamond "mutually desire" to make this arrangement. The memorandum given to him on August 31, 1978, proposing his early retirement,...