Parker v. FEDERAL NAT. MORTG. ASS'N, 82 C 4254.

• Decision Date: 30 June 1983
• Docket Number: No. 82 C 4254.,82 C 4254.
• Citation: 567 F. Supp. 265
• Parties: Cletus C. PARKER, Plaintiff, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant.
• Court: U.S. District Court — Northern District of Illinois

567 F. Supp. 265

Cletus C. PARKER, Plaintiff, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant.

No. 82 C 4254.

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

June 30, 1983.

Lonny Ben Ogus, Chicago, Ill., for plaintiff.

Michael A. Warner, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Cletus Parker ("Parker") sues Federal National Mortgage Association ("FNMA") under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 ("ADEA"),¹ alleging FNMA (1) terminated his employment (Count I) and (2) classified him as "retired" rather than "terminated" (Count II as amended) because of his age. FNMA has moved for summary judgment. For the reasons stated in this memorandum opinion and order FNMA's motion is granted.

Controlling Legal Principles²

Section 623(a) makes it unlawful for an employer:

(1) 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;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or

(3) to reduce the wage rate of any employee in order to comply with this chapter.³

As Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 550 (7th Cir.1982) (emphasis in original) teaches:

Thus, to establish a cause of action under the ADEA, a claimant must show that he was discriminated against because of his age.

ADEA does not make it unlawful, for instance, simply to discharge an employee between the ages of 40 and 70. ADEA violations occur only when employers allow age to be "a determining factor" in discharge or other employment decisions. Id. at 551-52 & n. 2.

In both Golomb, id. at 551 and Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1219 (7th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981), our Court of Appeals approved for use in ADEA cases the ping-pong-match burden-of-proof formula that the Supreme Court has devised for employment discrimination cases under Title VII of the Civil Rights Act of 1964. As summarized in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (citations omitted), that formula provides:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." ... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination....

The nature of the burden that shifts to the defendant should be understood in light of the plaintiff's ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.... That division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question.

But the Supreme Court has recently reminded litigants and lower courts they should not lose sight of that "ultimate question" — intentional discrimination vel non — as they work through the Burdine formula in a trial of an employment discrimination action on the merits. United States Postal Service Board of Governors v. Aikens, ___ U.S. ___, ___, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).

That admonition presumably applies as well in the "mini-trial" conducted on a motion for summary judgment. Our Court of Appeals has recently restated the law governing such a motion in Egger v. Phillips, 710 F.2d 292 at 296-297 (7th Cir.1983) (citations omitted):

A party seeking summary judgment under Fed.R.Civ.P. 56 must demonstrate the absence of a genuine issue of material fact.... In judging whether or not the movant has met this burden, the court must view the evidence submitted by the movant in the light most favorable to the non-moving party.... If, and only if, the movant meets his initial burden, it is incumbent upon the opposing party "to set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate as a matter of the governing law, shall be entered against him." ... However, it is always prudent to respond to a motion for summary judgment, even if the opposing party believes that the movant has failed to sustain his initial burden.

Moreover, a factual dispute does not preclude summary judgment unless, of course, the disputed fact is outcome determinative under the governing law. It is thus axiomatic that even in the face of some factual disputes, "where the undisputed facts demonstrate that one party is entitled to judgment as a matter of law, summary judgment in favor of that party is entirely appropriate," ... just as it is plain that if genuine factual disputes are resolved in favor of the non-movant, summary judgment may be entered in favor of the movant if appropriate as a matter of law.

Blending that analysis with governing ADEA law yields the following:

1. FNMA has the initial burden of showing the absence of a genuine issue as to its intention to discriminate against Parker because of his age.

2. If FNMA meets its burden Parker must set forth facts showing a genuine issue as to FNMA's intent.

3. Only if there is no genuine issue of fact on that score may summary judgment be granted FNMA.

This Court is not unmindful of the difficulty of granting summary judgment when the central material issue is one of intent. But summary judgment is proper where a "plaintiff has no indications of motive and intent, supportive of his position, to put on the scales for weighing." Kephart, 630 F.2d at 1218. That is the precise situation here: Parker's is "a wholly empty case." Id.

FNMA's Evidence⁴

FNMA is a publicly-held United States corporation with its home office in Washington, D.C. and regional offices in Atlanta, Chicago, Dallas, Los Angeles and Philadelphia (Mem. 2). FNMA serves the secondary mortgage market, purchasing FHA/VA and conventional residential mortgages for primary lenders and then servicing those purchased mortgages (Parker Dep. 15-17).

Before late 1981 FNMA's Chicago office comprised six divisions: Home Mortgage, Project Mortgage, Urban Activities, Regional Counsel, Regional Controller and Regional Administration. Parker was employed as a Senior Loan Representative in the Project Mortgage Division. That division (1) committed, purchased and serviced FHA multi-family residential mortgages and (2) approved condominium and subdivision development projects (id. at 17).

In late 1980 the Project Mortgage Division consisted of one purchasing team, four servicing teams and the regional appraiser and underwriter and their secretaries. It was the purchasing team's responsibility to approve the purchase of multi-family residential mortgages submitted to FNMA by its customers (id. at 20-21). Once a mortgage was approved and purchased, the servicing teams would take over the loan portfolios and oversee such things as the regular mortgage payments by the property owner and the current status of tax bills, insurance policies and chattel mortgages (id. at 21). Each servicing team had a Senior Loan Representative at its head and also included one Loan Representative, one or more Loan Technicians, a secretary and one or more clerks (id. at 19). Parker (age 62) was one of four Senior Loan Representatives heading the servicing teams, the others being Thomas Monico ("Monico," age 31), Meredith Wright ("Wright," age 55) and Craig Bromann ("Bromann," age 31), while the Senior Loan Representative on the purchasing team was Robert Haren ("Haren," age 57) (Morton Aff. ¶ 4).

In January 1981⁵ FNMA, responding to declining mortgage demand, implemented the first of two major reorganizations affecting the Project Mortgage Division. Its Washington home office directed that the Chicago office servicing teams be reduced in number from four to two (Parker Dep. 24). To determine who should head the two remaining teams, Morton (age 60) reviewed the qualifications of the four incumbent Senior Loan Representatives. First Morton chose Monico, whose job performance had always been consistently rated as superior. Morton also decided Wright's performance and qualifications were better than those of the other two Senior Loan Representatives and thus he too should remain as a supervisor. Instead of terminating Bromann and Parker as surplus personnel, Morton elected to retain them as Senior Loan Representatives on the two remaining servicing teams, but their positions were designated as "overfill" positions with the hope they could be placed in other positions as vacancies occurred through normal attrition. Haren was retained as the Senior Loan Representative on the purchasing team (Morton Aff. ¶ 5).

Morton met with Parker in January and explained the basis for the cutback and its effect on him. Though Parker did not dispute Morton's selection of Monico to head one of the remaining servicing teams, he questioned the selection of Wright over himself to head the second team. Morton explained Wright's previous experience as a property manager had worked to Wright's advantage in the decision (Parker Dep. 24, 27).

Due to the continuing decline in the mortgage industry, in late 1981 FNMA's home office instituted another major reorganization calling for substantial reduction of its work force. Following...