Franz v. Raymond Eisenhardt & Sons, Inc.

• Decision Date: 28 February 1990
• Docket Number: Civ. A. No. 88-4070 (HAA).
• Citation: 732 F. Supp. 521
• Parties: Robert C. FRANZ, Plaintiff, v. RAYMOND EISENHARDT & SONS, INC., Defendant.
• Court: U.S. District Court — District of New Jersey

732 F. Supp. 521

Robert C. FRANZ, Plaintiff, v. RAYMOND EISENHARDT & SONS, INC., Defendant.

Civ. A. No. 88-4070 (HAA).

United States District Court, D. New Jersey.

February 28, 1990.

Robert C. Franz, Florham Park, N.J., plaintiff, pro se and Patricia A. Spillane, Walder, Sondak, Berkeley & Brogan, Roseland, N.J., for plaintiff.

Peter S. Pearlman, Cohn & Lifland, Saddle Brook, N.J., for defendant.

HAROLD A. ACKERMAN, District Judge.

On September 20, 1988, Mr. Robert C. Franz brought this age discrimination and retaliation action against Raymond Eisenhardt & Sons, Inc. ("Eisenhardt"), pursuant to the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34. Before me now is the defendant's motion for summary judgment, challenging the plaintiff's ability to make his prima facie case as to his age discrimination and retaliation claims.

BACKGROUND

The parties have agreed to the following facts contained in the pretrial order ("pto") filed with this court on December 26, 1989. The plaintiff was born on December 29, 1921 (pto, stipulation of facts, para. 1). The defendant employed the plaintiff in various roles since September, 1956, except for around one year (September, 1969 to June, 1970) (id. paras. 3-6). The defendant is a consulting firm which provides cost reduction services in product packaging (id. para. 2).

It is fair to say that while in the service of the defendant, the plaintiff rose through the ranks. He started out as a Project Director. The defendant promoted him to vice president in 1960; to senior vice president in 1965; and to executive vice president in 1967 (id. para. 3). The defendant promoted him to president in 1973 (id. para. 5). He held that position until 1977 (id.). From 1977 until 1984, the plaintiff held the position of vice chairman of the defendant (id. para. 6). In July, 1984, the defendant employed the plaintiff as president (id. para. 7). In August, 1985, the defendant replaced the plaintiff as president, installing Francis S. Farissey in that position (id. para. 8). Until the time of his termination (October 31, 1986), the plaintiff again held the vice-chairman position (id. paras. 8, 15). By August/September, 1986, the defendant paid a salary of $65,000 to the plaintiff (id. para. 10).

From 1965 through September, 1986, Raymond Eisenhardt owned and managed the defendant (id. para. 11). From 1985 to 1986, the defendant witnessed a decrease in its gross receipts of over half a million dollars (id. para. 12). In October, 1986, Mr. Eisenhardt sold his shares of stock in the company to Mr. Frank Prime and Mr. Harry Columbo, two of the defendant's salesmen (id. para. 14). These two purchasers and Mr. Farissey met with the plaintiff on October 14, 1986 and informed him that due to economics, the defendant was terminating the plaintiff effective October 31, 1986 (id. para. 15).

At this time, the defendant also terminated five other employees. Two, Andrew Crawford and Reginald Wardley, like the plaintiff, were operations engineers. At the time of their termination, Mr. Crawford was sixty-eight years of age and Mr. Wardley was seventy-two years of age (id. paras. 19, 20, 26). They were earning $55,000 and $45,000, respectively (id. para. 10). At the time of his termination, the plaintiff was sixty-five years of age. The defendant also terminated three other employees, respectively aged 46 years, 57 years, and 25 years (id. para. 26). After termination, the operations people that were left were Peter Henningsen (age 60), Harry Kaptein (age 51), and Harry Latowsky (age 60) (id. para. 27).

At the time of his termination, the plaintiff was the project director for the Miles Laboratories account and the project engineer for the Asahi Chemicals account (id. para. 9). The defendant, as it did with Mr. Wardley and Mr. Crawford, retained the plaintiff, on a per diem plus expenses basis, as an independent consultant (id. para. 20). Apparently, the plaintiff functioned in this capacity from November 7, 1986 until March 13, 1987, working primarily on the Miles and Asahi accounts (id. paras. 21, 24). The defendant did not assign him any other client projects, besides Miles and Asahi, during this time (id. para. 25).

On March 16, 1987, the plaintiff filed an EEOC charge of age discrimination with respect to his October, 1986 termination (id. para. 22). The defendant received the charge sometime that week. On November 10, 1987, the plaintiff again filed an EEOC complaint, this time alleging that the defendants had retaliated against him for filing the original charge by abruptly terminating his consultant's work after learning that he had filed an age-discrimination complaint with the EEOC (id. para. 32). On September 26, 1988, the EEOC determined not to investigate the retaliation charge because this lawsuit was already proceeding (id. para. 33). In December, 1988, the EEOC, reaffirming an August, 1988 determination, concluded that there was no age-discrimination violation based on the evidence before it (id. paras. 30-31).

In his September 20, 1988, pro se complaint, the plaintiff alleged that his termination violated the age discrimination in employment act and that the purported retaliation also violated the antiretaliation section of ADEA. The plaintiff further alleged that these violations were willful (complaint para. 21). The plaintiff thus sought backpay and benefits, reinstatement or front pay in lieu of reinstatement, double damages, damages for emotional distress, reasonable attorney's fees and costs (complaint, at 4).

Now, after discovery, the defendant has moved for summary judgment. In so moving, the defendant argues that there are no genuine issues of material fact as to certain elements essential for the plaintiff to make his prima facie case as to both claims, and, since the defendant is entitled to judgment as a matter of law, judgment should issue in its favor. Specifically, as to the age-discrimination claim, the defendant contends that the plaintiff's responsibilities were in chief assumed by a sixty-year old (Mr. Latowsky) upon the plaintiff's October, 1986 termination. Per the defendant, since this individual was not "sufficiently younger" than the plaintiff, the plaintiff cannot make a prima facie case of age discrimination. As for the retaliation claim, the defendant argues that the plaintiff could not possibly state a prima facie case because the defendant took no action at all with respect to terminating the plaintiff's consultancy. Moreover, the defendant argues that the plaintiff is not an employee within the contemplation of ADEA's antiretaliation provision.

DISCUSSION

Under Federal Rule of Civil Procedure 56(c), a grant of summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law" (emphasis added). An issue is "genuine" "if the evidence is such that a reasonable trier of fact could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); see Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir.1989). In Williams, the United States Court of Appeals for the Third Circuit defined the amount of evidence necessary to make an issue "genuine." The appellate court explained that the affirmative evidence adduced by the nonmovant in opposition to the application, regardless of its direct or circumstantial nature, "must amount to more than a scintilla , "a mere trace", but may amount to less (in the evaluation of the court) than a preponderance." 891 F.2d at 460-61, 464. As to materiality, the substantive law will identify what facts are material. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510 (citing 10A C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure § 2725, at 93-95 (1983)).

On a motion for summary judgment, the movant bears the burden of demonstrating the absence of material facts requiring trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Where, as here, the nonmovant (plaintiff) would bear the ultimate burden of persuasion at trial, "the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden at trial." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987), quoted in Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 725, 107 L.Ed.2d 745 (1990). In the context of a disparate-treatment discrimination action, where the United States Supreme Court's familiar teachings in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981), come into play,¹ the United States Court of Appeals for the Third Circuit has observed that

a defendant is entitled to summary judgment if it can demonstrate that the plaintiff could not carry its burden of proof at trial. The defendant may demonstrate this in two ways: it may show that the plaintiff is unable to establish a prima facie case of discrimination; or, if the plaintiff has successfully established a prima facie case, the defendant may win summary judgment by showing that the plaintiff could not produce sufficient evidence of pretext to rebut an assertion of nondiscriminatory reasons for discharge.

Jalil, 873 F.2d at 707. The defendant, as indicated above, has taken the first tack with...