Cengr v. Fusibond Piping Systems, Inc.

• Decision Date: 28 January 1998
• Docket Number: 97-1804,Nos. 97-1260,s. 97-1260
• Citation: 135 F.3d 445
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 3, 72 Empl. Prac. Dec. P 45,171, 40 Fed.R.Serv.3d 382 Robert CENGR, Plaintiff-Appellant, v. FUSIBOND PIPING SYSTEMS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 445

135 F.3d 445

76 Fair Empl.Prac.Cas. (BNA) 3, 72 Empl. Prac.

Dec. P 45,171,

40 Fed.R.Serv.3d 382

Robert CENGR, Plaintiff-Appellant, v. FUSIBOND PIPING SYSTEMS, INC., Defendant-Appellee.

Nos. 97-1260, 97-1804.

United States Court of Appeals Seventh Circuit.

Argued Oct. 20, 1997.

Decided Jan. 28, 1998.

Robert S. Minetz (argued), James J. Legner, Cowan & Minetz, Chicago, IL, for Plaintiff-Appellant.

Thomas C. Crooks (argued), Tobin & Associates, Chicago, IL, for Defendant-Appellee.

Before BAUER, FLAUM, and KANNE, Circuit Judges.

BAUER, Circuit Judge.

Robert Cengr brought this suit against his former employer, Fusibond Piping Systems, Inc. ("Fusibond"), alleging that Fusibond improperly terminated him because of his age. The district court granted summary judgment in favor of Fusibond and ordered Cengr to pay Fusibond's costs, and Cengr appeals. We affirm the district court's grant of summary judgment, but reverse on the issue of costs.

BACKGROUND

Fusibond is a small, privately owned company which designs, manufactures, and sells lined piping systems. Fusibond's pipe systems are used to carry primarily toxic chemicals and gases. Robert Cengr began working for the precursor company of Fusibond in April of 1976. When Cengr started work for Fusibond, his primary responsibility was flaring pipes, and eventually he did a variety Cengr received his first major performance warning in a written statement dated May 1, 1985 from the Vice President of Operations, Carl Wacker. The warning cited "frequent lapses in Fusibond quality control," and advised Cengr that "future negligence in this area may be cause for dismissal." In May of 1989 Carl Wacker died, and Cengr and Fusibond's president, Richard Krause, took over Mr. Wacker's responsibilities. According to Krause, Cengr performed his duties well until 1991, when he began to receive repeated censures.

of duties as a supervisor for Fusibond. From the time he became a supervisor in 1978 until his termination in 1993, Cengr's primary responsibility was quality control. This entailed examining pipes, fittings, and other items during the manufacturing process and prior to shipment to ensure the pipes met all of Fusibond's quality criteria.

In 1991, Fusibond began receiving complaints from customers regarding manufacturing defects which should have been discovered by Cengr in quality control. One customer sent Fusibond a video of a defective piping system, which showed water spewing from every joint. The pipes shown in the video had passed through Cengr's quality control.

On November 11, 1991, Cengr received a written warning from Fusibond's president, Richard Krause, regarding his "failure to follow verbal and written instructions regarding proper QC [quality control]." Krause told Cengr that at Cengr's age of 49, close to 50, it was hard to find a job, and that Cengr should think about that in considering his job performance. Cengr was placed on thirty days probation.

In March of 1993, Cengr was twice passed over for promotion. George Piotrowski, who previously shared the same level of responsibility as Cengr, was promoted to plant manager and became Cengr's supervisor. Cengr did not disagree with Piotrowski's promotion and did not believe the promotion should have gone to him. Piotrowski was 43 years old at the time of his promotion. Steve Boardman, then age 29, was also promoted in March of 1993, to production supervisor. Before Boardman's promotion, Cengr supervised Boardman. After the promotion, Boardman took over Cengr's supervisory duties in the machine shop area, Cengr's duties regarding the ram extrusion process, and his duties regarding any special products.

In June of 1993, Cengr was again reprimanded for his poor work performance. On June 18, 1993, Cengr was given a written warning and was placed on probation for personal problems with another Fusibond employee. Cengr and employee Larry Sawicki had engaged in "screaming matches" regarding coordination of their work efforts due to Cengr's delay in completing his quality control responsibilities. When Cengr's performance did not improve, his probation was extended "until further notice." During the summer of 1993, Fusibond encountered several more instances of Cengr's poor performance, culminating on September 20, 1993, when his responsibilities were limited. Cengr's duties regarding inventory, production scheduling, and expediting were assigned to Paul Jurasits, then age 29. Cengr's behavior prompted Richard Krause to inquire about Cengr's health and whether he was on any medication which might be interfering with his work. Cengr said that he was not.

Cengr's performance problems continued. On December 3, 1993, Cengr received another written warning; this time the warning included a one week disciplinary layoff without pay. Cengr was directed to "reflect on his past performance and determine where his future lies with this company." The day he returned from his one week disciplinary layoff, Richard Krause ordered a meeting of George Piotrowski, the plant superintendent; Mike Heiens, the marketing manager; Craig Krause, the customer service manager; and Kyle Manowsky, the purchasing agent and corporate secretary. The group recommended to Krause that Cengr be terminated, a recommendation which Krause did not accept. Krause pointed out that Cengr had been with the company for a long time, was once a loyal employee, and had a lot of knowledge about the Fusibond process. The group agreed that rather than terminating Cengr, his duties would be further limited.

When Cengr returned from his disciplinary layoff, he met with Heiens, Craig Krause, Piotrowski, and Manowsky, who explained to Cengr that his duties would be strictly limited to quality control. Although his salary had never been reduced when his responsibilities were limited in the past, Cengr refused to commit to a new job until he knew what his salary would be. The group explained to him that only Richard Krause had the authority to discuss salary, and Krause was not present at the meeting. Cengr then went to the general office area and confronted Richard Krause. Cengr demanded to know what his salary would be, and Krause responded by requesting that Cengr commit to accepting the job first. Although Krause claimed to having no intention of reducing Cengr's pay, when Cengr continued to refuse to commit to the job, Krause placed him on "permanent layoff." Cengr's duties were subsequently divided among current Fusibond employees.

The day after his termination, Cengr went to the Occupational Safety and Health Administration ("OSHA") to report Fusibond for alleged safety violations. He also filed a grievance report with the Equal Employment Opportunity Commission ("EEOC"), claiming in one of the reports that he was terminated because he was "the highest paid employee in the shop." Cengr reiterated this belief at his deposition. He had received significant pay raises from the mid-1980s until 1991. From 1986 through 1988, Cengr received bonuses totaling $1,325, $1,400, and $1,400 for each year, respectively. In August of 1989, Cengr received a $1,400 bonus and a $225 bi-monthly pay raise. In December of that same year he received another $500 bonus. Cengr received another bi-monthly raise of $100 in March of 1990, and bonuses of $1,500 and $2,366 in August and December of 1990. In 1991, however, Cengr received a bi-monthly pay raise of only $50 and a bonus of only $500. In 1992, Cengr's bi-monthly pay raise was $45 and his bonus $300. In 1993 Cengr received no raise and no bonus. President Richard Krause described Cengr's raises and bonuses during Cengr's last three years with Fusibond as token, noting that Cengr was taken out of the bonus program, but that Krause gave him "a few hundred bucks at Christmas so [Cengr] wouldn't feel embarrassed."

On November 22, 1995 Cengr filed an age discrimination suit against Fusibond, alleging a violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. On December 12, 1996, Fusibond filed its motion for summary judgment. The trial court granted Fusibond's motion for summary judgment on January 10, 1997. Cengr filed a notice of appeal on February 4, 1997. On February 6, 1997, Fusibond sent its bill of costs to Cengr's attorney, requesting $2,127.08 in costs. On February 11, 1997, in response to Cengr's inquiry, the trial court set the schedule for Cengr's response to Fusibond's bill of costs. On March 21, 1997, the trial court entered a one sentence order taxing costs in the amount of $2,127.08 in favor of Fusibond. Cengr appeals, arguing that the district court erred in both granting Fusibond's motion for summary judgment and in taxing $2,127.08 in costs against him.

ANALYSIS

A. Summary Judgment

We review the district court's grant of summary judgment de novo, and decide all factual inferences in the light most favorable to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Denisi v. Dominick's Finer Foods, Inc., 99 F.3d 860, 864 (7th Cir.1996). We draw our own conclusions of law and fact from the record before us. Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 395 (7th Cir.1997). Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c).

B. Age Discrimination Claim

The ADEA prohibits employers from discriminating against employees forty years of age or older. 29 U.S.C. §§ 621(b), 631(a). A plaintiff bringing a claim under the ADEA must establish that "he would not A plaintiff has two ways of prevailing on a claim for age discrimination. One way is to meet the burden head on by presenting direct or circumstantial evidence that age was the determining...