Lesch v. Crown Cork & Seal Co.

Decision Date28 February 2002
Docket NumberNo. 00-4239.,00-4239.
Citation282 F.3d 467
PartiesRonald LESCH, Plaintiff-Appellant, v. CROWN CORK & SEAL CO., Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Craig E. Anderson (argued), Jacobson, Brandvik & Anderson, Joseph E. Tighe, Chicago, IL, for plaintiff-appellant.

Joseph R. Marconi (argued), Johnson & Bell, Chicago, IL, for defendant-appellee.

Before RIPPLE, MANION, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

At the age of 61, Ronald Lesch's career as the comptroller of Crown International Management Systems (CIMS), a division of Crown Cork & Seal Co. (Crown), came to an abrupt end when Crown acquired a French company and decided it no longer needed CIMS to provide certain accounting services it had previously used. Lesch believed that age discrimination lay behind the loss of his job, given that a man 11 years his junior was selected to head the new Corporate Technologies (CT) accounting group, and given the fact that the CT group took over some non-CIMS accounting work Lesch had formerly overseen. Following his forced early retirement, Lesch filed a timely complaint with the EEOC alleging that Crown violated the Age Discrimination and Employment Act (ADEA), 29 U.S.C. § 621 et seq., by dismissing him from his position and replacing him with someone younger. After receiving his right-to-sue letter, Lesch filed a claim in federal district court. The district court granted summary judgment to Crown, which we affirm.


Lesch's termination was undoubtedly painful; by the time he left, he had worked for CIMS for almost 40 years. As of 1997, when he was 61, he was the comptroller, or head accountant, for what was then Crown's division in charge of international operations. Early that year, Crown had decided to consolidate its accounting operations for both CIMS and CT under Lesch's supervision. On the recommendation of Judith White, one of CT's executive staff, Siegfried Genutis was brought in to take primary responsibility for CT's accounting work. Genutis had relatively little formal experience in accounting methods, but he had extensive expertise in computers and the software used to compile and generate reports from financial data. When Genutis joined the CIMS accounting group, Lesch assigned Douglas Pittman, a staff accountant, to train Genutis in the group's accounting methods. Before long, Genutis, while technically still under Lesch's supervision, was almost exclusively working directly with White on CT's accounting projects.

Around the same time, Crown acquired Carnaud Metal Box, a French company that specialized in many of the same overseas product development and management services that CIMS provided. Crown decided to eliminate the duplication by phasing out the CIMS division and terminating all of its employees. CT, in contrast, was not slated to lose any positions as a result of the acquisition. Instead, new arrangements had to be made for meeting CT's accounting needs.

White had the responsibility of establishing a new, stand-alone CT accounting group, drawing from the CIMS accounting staff. She wanted the head of the CT group to be a strong manager, but, just as importantly, she wanted someone with the necessary information technology expertise to help advance the computerization of accounting operations at Crown. Based upon these criteria, and the fact that she had found him to be a highly competent accountant who understood CT's accounting needs, White selected Genutis to head the CT group. White also selected three junior level accountants for the group, one of whom was Douglas Pittman. At the time, Genutis was 50 and Pittman was 53.

When the unwelcome word reached Lesch in early 1997 that his CIMS comptroller position was slated for elimination, he approached Fred Leh in Crown's Human Resources Department about finding an alternative position. Lesch did not want to retire before he turned 65 and indicated to Leh his willingness to take even a demotion in order to remain with the company. At the time, Lesch was not aware of White's plans to use accountants from the CIMS group to meet CT's accounting needs. As part of Leh's search for alternative positions, however, Leh learned that White had chosen to retain Genutis rather than Lesch to lead the revamped CT group. It is unclear from the record whether Leh discussed with White the possibility of Lesch's taking one of the entry level accounting positions, but White later wrote Leh an e-mail note in which she explained that she had never considered Lesch for the entry level positions because of his status as a senior manager.

Despite his attempts, Leh was unable to find any alternative position for Lesch within Crown, and Lesch was forced into early retirement on September 30, 1998, the day the position of CIMS comptroller was officially eliminated. Lesch subsequently filed a charge with the EEOC alleging that he had been terminated from his position because of his age in violation of the ADEA. He further alleged that his position at Crown had not been eliminated and that Genutis, a substantially younger employee, had been promoted to fill it. Based on the EEOC's right-to-sue letter, Lesch filed the same "discriminatory termination" claim in the district court.

The theory of the case that Lesch initially presented to the EEOC and to the district court was that although CIMS had been phased out, the job of manager of CT's accounting projects (which Lesch had held) remained, and rather than retaining him to continue those duties, Crown fired him and promoted Genutis. By the time the case reached the summary judgment stage, however, Lesch had reframed his theory of the case into something that looked much more like a "failure to transfer" claim. He conceded that all positions in the CIMS accounting group had been eliminated in the reduction in force — including those relating to CT's accounting work — and alleged instead that Crown had discriminated against him on the basis of age by failing to transfer him to a new CT group position. In support of this claim, he pointed to Genutis and Pittman as younger workers who were transferred despite their being less qualified than he was to fill the positions.

For purposes of its analysis, the district court proceeded as though Lesch were arguing separate claims, one for discriminatory termination and another for failure to transfer. The court granted summary judgment to Crown on Lesch's discriminatory termination claim. It dismissed his failure to transfer claim, principally because it was not encompassed within his EEOC charge, and alternatively on the merits.


When a case is dismissed at the summary judgment stage our review is de novo. Trahant v. Royal Indem. Co., 121 F.3d 1094, 1095 (7th Cir.1997). We consider the evidentiary record in the light most favorable to the non-moving party, in this case Lesch, and draw all reasonable inferences in his favor. Summary judgment is only appropriate where the record discloses no dispute as to any material fact. Taylor v. Monsanto Co., 150 F.3d 806, 808 (7th Cir.1998).

Before going any further, we need to clarify exactly what theory or theories Lesch has preserved at this stage of the case. As we said, over the course of this litigation, Lesch has advanced two distinct claims under the ADEA, one for discriminatory termination, another for discriminatory failure to transfer. The district court correctly observed that his EEOC charge mentioned only the discriminatory termination claim. Lesch is bound by the charges he filed with the EEOC. Ritter v. Hill 'N Dale Farm, Inc., 231 F.3d 1039, 1045 (7th Cir.2000). This means, as the district court concluded, that the failure to transfer claim was not properly before the district court. As such, it is not properly before us either, even if we read the charges of discrimination liberally. Id.

Affirming this aspect of the district court's opinion would normally be of relatively little consequence, as long as the discriminatory termination claim Lesch actually raised in his EEOC charge was still in the case. But there is an issue about this very point. Lesch's entire appellate argument has been framed in terms of a discriminatory failure to transfer him to the CT group — the claim he did not raise with the EEOC. He contends that the reasons Crown gives for choosing both Genutis and Pittman over him for the new CT group are pretextual. We must therefore decide whether Lesch has waived any potentially appealable issues he might have had on his discriminatory termination claim.

Although the question is close, we conclude that nothing Lesch has done prevents us from reaching the merits of this issue. Crown has itself waived any opportunity to rely on any omissions found in Lesch's brief. See, e.g., Soo Line R.R. Co v. St. Louis Southwestern Ry., 125 F.3d 481, 483 n. 2 (7th Cir.1997). Crown did not urge us to affirm the district court's judgment on the theory that the only claim Lesch preserved for appellate review was the flawed transfer one. Furthermore, on these facts there is not a very sharp distinction between the two characterizations of what happened at Crown. On the one hand, Lesch's job title was eliminated, as was the CIMS accounting group that he directed. The directorship of the CT group position could thus be viewed as a new position into which Crown chose to transfer Genutis rather than Lesch. On the other hand, certain activities that Lesch had previously overseen — specifically, CT's accounting projects — remained after the CIMS phase-out. In this sense, the CT...

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