Cebula v. General Elec. Co.

• Citation: 614 F. Supp. 260
• Decision Date: 17 July 1985
• Docket Number: No. 84 C 1198.,84 C 1198.
• Parties: Joseph M. CEBULA, Plaintiff, v. GENERAL ELECTRIC COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

614 F. Supp. 260

Joseph M. CEBULA, Plaintiff, v. GENERAL ELECTRIC COMPANY, Defendant.

No. 84 C 1198.

United States District Court, N.D. Illinois, E.D.

July 17, 1985.

Michael T. Hannafan, Adrianne S. Harvitt, Hannafan & Handler, Ltd., Chicago, Ill., for plaintiff.

Arthur B. Smith, Jr., Thomas G. Abram, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

The General Electric Company ("GE") fired Joseph Cebula ("Cebula") on August 29, 1983. Cebula, who was 45 years old at the time, had worked for GE for about five years. He alleges that GE dismissed him because of his age, violating the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. Cebula also alleges that when his supervisor taped his conversation during the termination meeting, GE violated the Illinois Eavesdropping Act, Ill.Rev.Stat. ch. 38, §§ 14-1 to 14-9 (1983). GE has moved for summary judgment, while Cebula has moved for partial summary judgment on the eavesdropping claim. For the following reasons, GE's motion is granted as to both claims and Cebula's motion is denied.

Facts

The following material facts are undisputed. Cebula began working for GE in 1978 as a Customer Service Representative. His responsibilities included installing and servicing x-ray and other medical diagnostic imaging equipment at medical institutions. GE provided Cebula with service and equipment training.

GE reviewed Cebula's performance regularly. Cebula's immediate supervisor Walter Taken ("Taken") and his manager James Fetterman ("Fetterman") reviewed his performance for the first time on March 28, 1979. Cebula's overall performance was rated "acceptable," while his overall appraisal was rated "satisfactory." The possible ratings included, in ascending order, unacceptable, acceptable, satisfactory, fully satisfactory, excellent and outstanding.¹ Taken also noted that Cebula needed to continue to develop his technical base and become familiar with GE's basic products.

At the conclusion of Cebula's first year of employment with GE, Taken and Fetterman rated his performance "satisfactory." However, they warned him to "rapidly" expand his technical knowledge about GE products. Further, they suggested that he take more tape courses in order to stay current on GE products.

On November 28, 1980, Taken and Fetterman reviewed Cebula's performance for the third time. Although his work rated "fully satisfactory," Taken and Fetterman listed areas that needed improvement. They noted that Cebula still needed further training to improve his technical knowledge especially in newer equipment and image systems.

On March 31, 1982, Taken and Fetterman reported that Cebula's performance had declined. They lowered his rating to "acceptable," and they stated that "for time in position, fundamental knowledge of simple systems is below our expectations." Moreover, they indicated that Cebula needed to broaden his electrical skills to fit the criteria of his position. They also noted that some customers had complained that he was unable to fix problems in a timely manner.

Cebula's fifth performance review was completed by Taken and a new district manager, Ravi Sharma ("Sharma"). The evaluation dated February 11, 1983, indicated that while his performance was acceptable, his performance was still declining. Specifically, Taken and Sharma indicated that Cebula frequently failed to arrive at a logical problem solution due to his troubleshooting difficulty. Moreover, he had not mastered skills that were usual for time and position. They suggested that Cebula attend night classes at DeVry Institute in order to fill in his electronic gaps. Cebula did not enroll for classes at DeVry Institute or elsewhere. He asserts that this is because Sharma and Taken did not answer his questions about which courses to take.

Sharma further investigated Cebula's work performance. He consulted a field engineer and another customer service representative who confirmed Cebula's work deficiencies. The field engineer had observed Cebula working and described him as "technically incompetent." Similarly, the customer service representative reported that Cebula frequently required him to provide back up technical assistance by telephone. He opined that Cebula's problem was toubleshooting.

On February 18, 1983, Sharma placed Cebula on a 60-day work improvement program. After the 60-day period, GE would decide whether or not to fire him. Before the program could be formally implemented, Cebula took disability leave from March 4, 1983, until June 13, 1983, because of a hernia operation. Upon his return from leave, Taken gave him a memorandum summarizing the February 1983 performance appraisal and informing him that his performance would be reviewed over the next 60 days. Cebula disagreed with the assessment of the February meeting and refused Sharma's request to initial his summary of that meeting. Sharma gave Cebula the opportunity to be evaluated by another supervisor, but he declined. Cebula has admitted that he does not believe that Taken or Sharma are personally prejudiced against him because of age.

While Cebula was on the work improvement program, Cebula was cited in four "incident reports" prepared by Taken for failure to perform adequately on customer service calls. Taken also received during that time three letters from GE customers complaining about Cebula's work. Taken had never received such letters before about Cebula. Two of the customers instructed GE not to send Cebula to their hospitals in the future.

On August 23, 1983, Cebula's final performance review indicated that his work was unacceptable. Taken and Sharma met with him six days later when he was told he was fired. GE's reasons for firing Cebula were set out in a memorandum given to him:

1) Your technical performance is unacceptable;

2) You have not made any effort to improve technically, despite repeated requests; and

3) Your attitude towards customers is to a point where it is becoming a liability.

Cebula later discovered that Taken had tape recorded this meeting. GE had destroyed the tape after Taken, Sharma and Daniel L. Peters, Field Employee Relations Manager, had listened to it.

Cebula appealed his termination. GE upheld the dismissal despite ten letters written by its customers (at time of appeal) praising Cebula's performance. Cebula filed timely charges against GE with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission before instituting this suit.²

Proving an ADEA Violation

Cebula alleges that GE violated his rights under the ADEA. We have twice recently ruled on summary judgment motions in ADEA cases and will summarize the well-established standards set forth in those cases. See Oxman v. WLS-TV, 609 F.Supp. 1384 (N.D.Ill.1985); Selsor v. Callaghan, 609 F.Supp. 1003 (N.D.Ill.1985). Section 623 of the ADEA makes it illegal for an employer "to discharge any individual ... because of such individual's age." 29 U.S.C. § 623(a). Cebula must prove that "but for" his age, GE would not have fired him. See LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984). Cebula may try to meet his burden in two ways, direct and indirect. He may do so directly by presenting evidence that age was a determining factor in GE's decision to fire him. Id. He may also do so indirectly by using the "indirect" proof method created in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See LaMontagne, 750 F.2d at 1409.

Cebula appears to rely on the McDonnell-Douglas method of proof, which has been modified for the context of ADEA termination cases like this one. See, e.g., LaMontagne, 750 F.2d at 1409 n. 1; Selsor v. Callaghan, 609 F.Supp. at 1006. To establish a prima facie case of age discrimination, Cebula must show:

(1) He was in the protected age group, that is, age 40 to 70;

(2) He was performing his job at a level that met his employer's legitimate expectations;

(3) He was fired; and

(4) His employer sought a replacement for him.

LaMontagne, 750 F.2d at 1409; Selsor at 1006. Once Cebula meets this burden, the presumption is that he was dismissed because of his age.

GE may rebut a presumption of age discrimination by articulating a lawful reason for the discharge. This burden is merely one of production. The burden of proof always rests on the plaintiff. See, e.g., Selsor, at 1006. If GE articulates a legitimate reason for firing Cebula, Cebula must prove that the articulated reasons are pretextual. A pretext is demonstrated by evidence showing that GE was more likely motivated by a discriminatory reason or that its justification is not credible. See, e.g., LaMontagne, 750 F.2d at 1409, citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Having established the substance of our analysis, we turn to the procedural forces which shape that substance. Courts are reluctant to grant summary judgment in employment discrimination cases because so much turns on an employer's credibility and hidden or subconscious motives. Thus, where a genuine issue of employer motive or credibility lay at the heart of an ADEA case, we denied summary judgment. See Oxman, at 1393-95. But we have granted summary judgment to an employer where no credible evidence called an employer's motive and intent into question. See Selsor, 609 F.Supp. at 1007; also Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1218 (7th Cir.1980), cert. denied 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). As usual, summary judgment will be granted only if GE, the moving party, shows that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). We must view the evidence, as well as the reasonable inferences it creates, in the light most favorable to Cebula. See Big O Tire...