Grohs v. Gold Bond Bldg. Products

• Decision Date: 18 February 1986
• Docket Number: No. 84 C 7999.,84 C 7999.
• Citation: 627 F. Supp. 1555
• Parties: Dennis GROHS, Plaintiff, v. GOLD BOND BUILDING PRODUCTS, a DIVISION OF NATIONAL GYPSUM COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

627 F. Supp. 1555

Dennis GROHS, Plaintiff, v. GOLD BOND BUILDING PRODUCTS, a DIVISION OF NATIONAL GYPSUM COMPANY, Defendant.

No. 84 C 7999.

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

February 18, 1986.

Kathleen Baliunas, Chicago, Ill., for plaintiff.

Richard E. Lieberman and William M. O'Reilly, Ross & Hardies, Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

MORAN, District Judge.

Both sides in this age discrimination case have moved for summary judgment. Each supports his motion with exhibits, depositions and affidavits, most of which tend to shed more heat than light on the question of whether age was a determining factor in defendant's decision to fire plaintiff. Because only a trier of fact can sort out what happened, both motions are denied.

I. Facts

Plaintiff's complaint asks for a finding that he was discharged illegally because of his age and also that the discrimination was "willful." Defendant denies the allegations and says that plaintiff was terminated because his abrasive personality would not fit into the new management style which it was introducing. A remarkable amount of the material submitted, extending even to portions of the deposition transcripts, is argumentative, directed at the opposing attorney. What follows are the most significant facts to the extent this court has been able to extract them.

Defendant Gold Bond, a division of National Gypsum Company, manufactures wallboard. Plaintiff Dennis Grohs began his employment at defendant's plant in Waukegan, Illinois, in 1961. He became a foreman in 1968, mill superintendent in 1973, and board plant superintendent in 1979. His superiors consistently rated him competent at each annual review from 1969 on, and consistently gave him significant raises in pay. On the other hand, he seems to have been distinctly unpopular with other employees, both his fellow supervisors and those he supervised. According to Gold Bond's evidence, for example, at a June 1981 supervisors' dinner Grohs attempted to molest one female employee and propositioned another (Grohs denies both incidents). His subordinates apparently accused him of racist attitudes as well as insensitivity in general. The annual reviews, however, show only suggestions that he improve his supervisory style by, for example, taking courses in human relations. He survived the layoff of several supervisors in October 1981 and was given a raise for 1982. When Gold Bond decided to shut down its Waukegan facility in February 1982 because of a softening market for wallboard and spotty profitability, as well as labor difficulties, Grohs was one of only four employees retained from the work force to watch over the inactive plant. He also was used to train workers at another plant for short periods.

Grohs' real difficulties apparently began when Gold Bond decided to reopen the plant in Spring 1983, and brought in Michael Ward from its Phoenix plant to oversee the startup. Ward's intent, according to his testimony, was to promote a "family and team" relationship between supervisors and hourly employees, in place of what he understood to be the former hostile relationship. Ward's supervisors gave him only 90 days in which to show success at Waukegan or the plant would be closed again. Ward had heard from persons formerly at Waukegan of Grohs' alleged incidents of sexual harassment and other difficulties, he says, and determined that he could not afford to gamble that Grohs would fit into the new management style. Ward also felt that some equipment in the plant had been inadequately maintained during the closure, even though Grohs had personally assured him that it was ready for production. Ward discharged Grohs in late April 1983, after three weeks in Waukegan, explaining that Grohs had had "people problems." Gold Bond's labor relations lawyer sat in on the firing. The plant resumed production shortly thereafter, made it through its 90-day trial and apparently is still producing wallboard, though Ward has since been transferred to another plant.

Ward's account, however, is not the only evidence on the circumstances of Grohs' firing. Gold Bond maintains that when he was terminated Grohs was still board plant superintendent and he was not replaced. His duties were instead divided among several supervisory employees. However, there also is evidence that Grohs' actual position at the time of firing, and the position he would have occupied during the startup, was night security guard. During startup the plant only operated a day shift. Plaintiff thus fails to see the relevance of Grohs' alleged abrasiveness to his actual duties. Other evidence tends to show that Ward's management style included its own fair share of "people problems." There are also some indications of problems in production during the startup which may have been traceable to an inexperienced staff. Further, Robert Sarvis, the former managing director of Gold Bond, has testified in two affidavits that during the spring of 1983 Robert Spitz, vice-president of operations, had developed a plan to discharge a number of employees over the age of 45 and bring younger persons into the company. Grohs was 51 in the spring of 1983; Spitz was the supervisor of both Ward and Sarvis. According to Sarvis, Spitz considered Grohs to be one of those older persons who ought to be discharged and told Ward so in April 1983.

II. Discussion

The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., makes it "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1); see Western Air Lines, Inc. v. Criswell, 472 U.S. ___, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985). The statute provides for double damages if the violation is "willful." 29 U.S.C. § 626(b). The Supreme Court has defined a "willful" violation as one in which the employer either knew his conduct was prohibited by the ADEA or acted in reckless disregard of whether or not it was prohibited. A good faith effort to comply with the ADEA cannot produce a "willful" violation. Trans World Airlines, Inc. v. Thurston, 469 U.S. ___, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985).

In spite of its broad coverage, the ADEA "was not intended as a vehicle for judicial review of business decisions." Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1223 (7th Cir.1980). An employer may discharge an older employee for any number of legitimate business reasons, including an abrasive personality which affects his relations with other workers. Parker v. Federal National Mortgage Ass'n, 741 F.2d 975 (7th Cir.1984). To succeed, a plaintiff in an age discrimination suit must show discrimination, i.e., that his age was, if not the sole factor, at least "a determining factor" in his employer's decision. Id. at 980.

The method a plaintiff may use to prove discrimination depends in part on the circumstances surrounding the violation he alleges and in part on the type of evidence he has. Thurston, 469 U.S. at ___, 105 S.Ct. at 622; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 1824 n. 13, 36 L.Ed.2d 668 (1973). The Act applies to many types of employment decisions, for example not only ordinary hiring and firing, but also reductions in force and failure to rehire. The proof required of a plaintiff will vary somewhat, depending on the type of decision. See, e.g., Tice v. Lampert Yards, Inc., 761 F.2d 1210 (7th Cir.1985) (reduction in force); Caldwell v. National Ass'n of Home Builders, 771 F.2d 1051 (7th Cir.1985) (failure to rehire). Further, a plaintiff may try to meet his burden of proof directly, by presenting direct or circumstantial evidence that age was a determining factor in his discharge, or he may use the indirect method of proof first developed for cases under Title VII of the Civil Rights Act, in which he initially seeks to raise a presumption of discrimination with a "prima facie case," the employer rebuts with a legitimate non-discriminatory reason for his action, and then plaintiff attempts to show that the reason was in fact a pretext. Thurston, 469 U.S. at ___, 105 S.Ct. at 622; La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984).

The case at bar requires consideration of all these differences. Grohs was discharged when his employer was seeking to put together a new management team for a troubled plant, but also at a time when the plant was going back into production after a long shutdown. His situation thus presents aspects of both a reduction in force and a failure to rehire. Cf. Herman v. National Broadcasting Co., 744 F.2d 604 (7th Cir.1984) (film editors discharged and not rehired in shift to videotape). Grohs also offers direct evidence of discrimination with Sarvis' testimony and, alternatively, evidence which would be employed in the indirect method of proof. Cf. La Montagne, 750 F.2d at 1410 (plaintiff using both methods).

On a motion for summary judgment the facts and inferences must be considered favorably to the party opposing the motion. Since here both parties have moved for summary judgment, that means this court must look at the facts in a light most favorable to each party. This court determines that plaintiff has sufficient direct evidence of discrimination to maintain his action against defendants' motion for summary judgment. If a plaintiff carries his burden of proof with direct evidence of discrimination, the strength of his case on the indirect method of proof is irrelevant. Thurston, 469 U.S. at ___, 105 S.Ct. at 622. Plaintiff's only "burden" on defendant's motion for summary judgment is to present evidence sufficient to prevent defendant from demonstrating that no genuine issue of material fact exists. By offering Sarvis' affidavits, he has accomplished that. However, Gold Bond's...