Murray v. Sears, Roebuck and Co.

• Decision Date: 28 September 1989
• Docket Number: Civ. A. No. 4:89CV0167.
• Citation: 722 F. Supp. 1500
• Parties: James MURRAY, Plaintiff, v. SEARS, ROEBUCK AND CO., Defendant.
• Court: U.S. District Court — Northern District of Ohio

722 F. Supp. 1500

James MURRAY, Plaintiff, v. SEARS, ROEBUCK AND CO., Defendant.

Civ. A. No. 4:89CV0167.

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

September 28, 1989.

Michael Morley, Michael Morley Co., LPA, Youngstown, Ohio, for plaintiff.

Keith A. Savidge, Seeley, Savidge & Aussem Co., LPA, Cleveland, Ohio, for defendant.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

James Murray commenced this action on January 27, 1989 against Sears, Roebuck & Company ("Sears"). He claims that, in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. ("the ADEA"), Sears transferred him from a well-paid management position to a commission-based sales position in which he earned much less. He contends that this transfer forced him into early retirement, and thus he includes a constructive discharge claim. Sears responds that Murray was transferred for legitimate business reasons unrelated to his age, and that he resigned voluntarily. The Court has jurisdiction under 28 U.S.C. § 1331.

Now pending is Sears' July 14, 1989 motion for summary judgment, which Murray opposes. Upon consideration and for the reasons that follow, the Court finds Sears' motion to be well-taken.

I.

The relevant facts are not in dispute. James Murray, now sixty-four years old, began his employment with Sears as a commission-based salesperson in October of 1949. In 1951, he ceased active sales duties and became a division manager. He served in this capacity for more than thirty years.

In February of 1984, as part of a company-wide restructuring process, the store manager, John Hawkins, selected Murray for a newly created position, the Lead Development Coordinator ("LDC") of Home Improvement Products and Sales ("HIPS"). As both sides describe it, the LDC was conceived as a function requiring management experience. Murray worked in that capacity until February of 1987, at which time he was earning $17.73 per hour, when Hawkins again selected him for transfer, this time to a position selling major appliances on a commission basis.

The parties disagree as to the reason for this transfer. Hawkins asserts that the LDC job had evolved into one that was essentially clerical, such that Murray was both overqualified and overpaid for it. Hawkins states that, especially in light of Murray's salary level, he believed Murray's talents could be better utilized in another position. Murray, on the other hand, contends that the transfer was due to his age. However, he acknowledges that, incident to the transfer, Hawkins explained that, despite Murray's high quality performance as LDC, his wage level was too high. Murray brief at 9.

Murray, then sixty-one years old, had not worked as a salesperson for thirty years, and had no previous experience selling such appliances. Sears set him a sales goal of $500,000 and set his hourly pay rate at $5.99. These figures were calculated to permit him to earn at least as much in salary plus commissions as he had earned as a manager, $36,452.00, if he met his sales goal. He was replaced as LDC by a fifty-one year old, who was paid $7.17 per hour.

Murray served in his new capacity until November of 1987, earning a total of $31,502.00, slightly less than he had earned as a salaried manager. He draws the Court's attention to conversations between his supervisor, Nick Balog, and Hawkins concerning his comparative lack of success selling appliances. He also alleges, and Sears does not dispute, that Balog asked him on various occasions about his plans and whether he planned to retire.

On November 14, 1987, he took a leave of absence to undergo surgery for a recurring foot problem. He did not return to work thereafter. On January 31, 1988, at sixty-two years of age, he retired and accepted a lump sum distribution from the pension plan of $47,538.60; a distribution from the profit sharing plan of $21,564.98; 2,942 shares of Sears stock; and vacation pay and other benefits.

Murray subsequently filed a complaint of age discrimination with the Equal Employment Opportunity Commission ("EEOC"). On September 28, 1988, the EEOC issued a determination adverse to Murray's claim. Murray having sought review of this ruling, the EEOC issued its determination on review and dismissal of ADEA charge, confirming the initial adverse determination, on December 21, 1988. Murray then timely filed the instant lawsuit, claiming age discrimination and constructive discharge, and demanding compensatory and liquidated damages, as well as legal fees and costs.

II.

Sears now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c), which provides:

The judgment sought shall be rendered forthwith if 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....

The nature of the materials properly presented in a summary judgment pleading is set forth in Rule 56(e):

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Moreover, the moving party need not submit evidence negating a claim on which its opponent bears the burden of proof; and the moving party may rely upon the adverse party's failure to substantiate such essential claim with admissible evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In reviewing a summary judgment motion, this Court must view the evidence in the light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Hasan v. CleveTrust Realty Investors, Inc., 729 F.2d 372 (6th Cir.1984). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Id. Thus, in most civil trials, the Court must decide "whether a reasonable finder of fact could find by a preponderance of the evidence that the non-moving party is entitled to a verdict." Id. at 252, 106 S.Ct. at 2512. Although "the mere existence of a scintilla of evidence in support of the non-movant's position will be insufficient" to defeat a summary judgment motion, the Court is not precluded from denying a summary judgment motion where it concludes that proceeding to trial is a better course. Id. at 252, 254, 106 S.Ct. at 2512, 2513.

III.

Murray advances his claim pursuant to the Age Discrimination in Employment Act of 1967, codified at 29 U.S.C. § 621, et seq. ("the ADEA"), which states:

It shall be an unlawful employment practice for an employer —

(1) to ... 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). By its terms, this statute applies to individuals between the ages of 40 and 70. 29 U.S.C. § 631(a).

The Sixth Circuit Court of Appeals has held that "the ultimate issue in an age discrimination suit is whether age was a determining factor in the employer's decision...." Blackwell v. Sun Electric Corp., 696 F.2d 1176, 1180 (6th Cir.1983), cited in Brownlow v. Edgecomb Metals Co., 867 F.2d 960 (6th Cir.1989). The Sixth Circuit has upheld usage of the criteria first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), when assessing whether an employer's actions have been the impermissible product of intentional discrimination. Simpson v. Midland-Ross Corp., 823 F.2d 937 (6th Cir.1987); Blackwell v. Sun Electric Corp., 696 F.2d at 1176; Ackerman v. Diamond Shamrock Corp., 670 F.2d 66 (6th Cir.1982).

Accordingly, to establish a prima facie case of discrimination under this statute, Murray must produce evidence showing that:

(1) he was a member of a protected class (age 40 to 70);

(2) he was subjected to adverse employment action;

(3) he was qualified for the position;

(4) he was replaced by a younger person.

Simpson v. Midland-Ross Corp., 823 F.2d at 940. See also Wilkins v. Eaton Corp., 790 F.2d 515, 520 (6th Cir.1986). As in McDonnell Douglas, such a prima facie showing creates a rebuttable presumption which shifts the burden to the employer to articulate legitimate business reasons for its actions. If the employer produces such reasons, the burden shifts back to the plaintiff, who must:

demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that he has been the victim of intentional discrimination.

Simpson v. Midland-Ross Corp., 823 F.2d at 940, citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981).

The Sixth Circuit has held explicitly, however, that this burden-shifting analysis must not be employed rigidly in ADEA cases, so as to defeat a court's ability to "remain attentive to the realities of the...