Kittredge v. Parker Hannifin Corp., G81-268 CA 1.

• Decision Date: 10 April 1984
• Docket Number: No. G81-268 CA 1.,G81-268 CA 1.
• Parties: Ralph KITTREDGE, Plaintiff, v. PARKER HANNIFIN CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Michigan

597 F. Supp. 605

Ralph KITTREDGE, Plaintiff, v. PARKER HANNIFIN CORPORATION, Defendant.

No. G81-268 CA 1.

United States District Court, W.D. Michigan, S.D.

April 10, 1984.

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Donnelly & Associates, P.C. by Gerald D. Wahl, Detroit, Mich., for plaintiff.

Spieth, Bell, McCurdy & Newell Co., LPA by Bruce G. Hearey, Cleveland, Ohio and Miller, Johnson, Snell & Cummiskey by Robert Christians, Grand Rapids, Mich., for defendant.

HILLMAN, District Judge.

The complaint in this case was filed almost three years ago. Tempting as it is to take the matter under advisement, I know more about the matter now than I ever will, and in view of the fact that I'm going to Marquette next week, the sensible solution is to render my opinion at this time.

As I indicated earlier, I have read the briefs and the material that was submitted to me over the last few days. I have also reviewed the key cases that you both cited to me, and before oral argument, arrived at a tentative conclusion on how this matter should be resolved. Nevertheless, I try very hard to listen carefully to oral argument and maintain a flexible position, and change my opinion if I'm convinced my initial judgment was wrong. In the case I have heard today, although the arguments have been effective and interesting, I have heard nothing that has changed my opinion as to how this matter ought to be resolved.

I have prepared a rough draft, which I am prepared to read, but it is in rough form, and if it's going to be typed, I reserve the right to edit it.

Plaintiff, Ralph Kittredge, who I believe is 57 years of age, and an engineering executive formerly employed by Defendant Parker Hannifin Corporation (Parker), has filed this action pursuant to the Age Discrimination Act, 29 U.S.C. Section 621 et seq., and the Illinois Fair Employment Practices Act, charging that he had been terminated for reasons that were unrelated to his performance, without reasonable business justification, a determining factor in his termination. Not necessarily the sole factor, but a determining factor.

The complaint also charges the defendant with retaliating against the plaintiff for filing charges against Parker with the EEOC and also with the Illinois Department of Human Rights, by ensuring that the plaintiff would not become employed by another potential employer, the Indian Head Company of Belding, Michigan.

Finally, plaintiff charges defendant breached an oral contract of employment by terminating plaintiff without just cause. The matter is now before the Court on defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. On a motion for summary judgment, the moving party bears the burden of proving conclusively that no genuine issue of material fact exists, and that the moving party is entitled to summary judgment as a matter of law. See Smith v. Hudson, 600 F.2d 60 (6th Cir.1979); Tee-Pak, Inc. v. St. Regis Paper Company, 491 F.2d 1193 (6th Cir.1974); Fed.R.Civ.P. 56(a).

In determining whether or not there are issues of fact requiring a trial, the inferences to be drawn from the underlying facts contained in the affidavits, depositions, pleadings and depositions, must be viewed in the light most favorable to the party opposing the motion. At this stage of the proceedings I may not resolve disputed questions of fact, and if disputed questions of fact remain, it is my obligation to deny the motion and proceed to trial. United States v. Articles of Device, 527 F.2d 1008, 1011, a 6th Circuit case.

The purpose of the Age Discrimination in Employment Act is to promote employment of older persons based on their ability rather than their age; to prohibit arbitrary age discrimination in employment and have employers and workers meet the problems arising from the impact of age in employment. The Act protects individuals who are at least 40 but less than 70 years of age. See 29 U.S.C. Section 621 et seq.

Mr. Kittredge went to work for Parker in June of 1972, and at that time he was 46 years of age. For approximately six years he was employed in the defendant's pneumatics division at Otsego here in Michigan, and eventually he rose to the position of manager of manufacturering of that division. In October of 1978 Mr. Kittredge was offered a position in the cylinder division of Parker. He accepted that job, and he moved to Illinois to assume the position of operations manager of the cylinder division. There is some dispute over whether plaintiff was promised that he would eventually be made general manager of the cylinder division after a break-in period or whether promotion to general manager was contingent on his performance as operations manager. In any event, he was never promoted to general manager.

After he had been there about two years, in July 1980, a Mr. Larry Zeno, who was 37 years of age, was named general manager of the cylinder division. Approximately one month later Mr. Kittredge's employment with Parker was terminated. At that time he was 54 years of age.

Plaintiff alleges that his age was a determining factor in his discharge. Defendant, on the other hand, claims that plaintiff's termination was lawful under both state and federal law. Defendant now moves for summary judgment, asserting that plaintiff has failed to and cannot adduce evidence sufficient to either establish a prima facie case of age discrimination, or to rebut defendant's proffered legitimate reasons for discharge.

There are really three areas of dispute between the parties. The first concerns the job offered to Kittredge in October of '78. As I mentioned before, there seems to be a dispute as to whether he was promised that job after a break-in period or whether it was going to depend upon his performance. In any event, the title which he assumed, the title which he had at his termination was operations manager.

The second area of dispute concerns plaintiff's performance as operations manager. Plaintiff contends that his performance was more than satisfactory. Defendant disagrees and argues that his performance was poor enough not only to preclude promotion, but to justify termination.

And, finally, plaintiff argues that Parker employees somehow persuaded another employer, Indian Head Company, not to hire him. Defendant denies that charge and says, in effect, that a Parker employee actually gave the plaintiff a good recommendation.

In suits to establish that the plaintiff has been discharged from employment because of his age, as prohibited by the ADEA, it is clear that the burden is on the plaintiff to first come forward with evidence to demonstrate that there has in fact been a discriminatory discharge, in order to make a prima facie case.

In the 6th Circuit, the standard for determining the ADEA claim can be found in Ackerman v. Diamond Shamrock Corporation, 670 F.2d 66. (6th Cir.1982). In that case the Court said that "The ultimate issue is whether age was a factor in a decision of an employer to terminate an ADEA claimant and whether the age of claimant made a difference in determining whether he was to be retained or discharged." See also Tuohy v. Ford Motor Co., 675 F.2d 842, (6th Cir.1982); Chamberlain v. Bissell Inc., 547 F.Supp. 1067 (W.D. Mich.1982).

The plaintiff has argued that the Court should apply the standard for a prima facie case set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The 6th Circuit, although not rejecting those guidelines, has expressly refused to mechanically apply the prima facie standards set forth in the McDonnell Douglas case. See Laugesen v. Anaconda Company, 510 F.2d 307, 312 (6th Cir., 1975). See also Blackwell v. Sun Electric Corporation, 696 F.2d 1176 (6th Cir.1983).

In Laugesen, plaintiff asserted that he had made out a prima facie case under McDonnell Douglas and was entitled to an instruction charging the jury that he made a prima facie case and that the burden of proving non-discrimination shifted to the defendant.

The Court, in discussing the burden of proof under McDonnell Douglas, held that it is inappropriate to borrow and apply Title VII standards automatically. The Laugsen Court reviewed the legislative history, stating that the formalistic approach in McDonnell Douglas may not always be desirable in a case of discriminatory discharge because of age, and then had the following to say:

"The progression of age is a universal human process. In the very nature of the problem, it is apparent that in the usual case, absent any discriminatory intent, discharged employees will more often than not be replaced by those younger than they, for older employees are constantly moving out of the labor market while younger ones move in. This factor of progression and replacement is not necessarily involved in cases involving the immutable characteristics of race, sex, and national origin. Thus, while the principal thrust of the Age Act is to protect the older worker from victimization of arbitrary classification on account of age, we do not believe that Congress intended automatic presumptions to apply whenever a worker is replaced by another of a different age."

In this circuit, then, the burden is on plaintiff to show age was a determining factor. That determination is made on a case-by-case basis. Id. It is not enough for the plaintiff to "do nothing more than state his conclusion that he was terminated because of age. To permit this single statement to constitute a prima facie case would place a burden on employers which Congress never intended." Locke v. Commercial Union Ins. Co., 676 F.2d 205, at 206 (6th Cir.1982).

I have reviewed the material which has been submitted to me. I have reviewed it carefully. The sole evidence of age discrimination offered by the plaintiff, other than the fact that he was dismissed and that he believes the basis for dismissal was his age, is that one other salaried employee over the age of 40 was dismissed...