Russell v. Keyes Fibre Co.

• Decision Date: 05 February 1991
• Docket Number: No. H 90-127.,H 90-127.
• Citation: 771 F. Supp. 951
• Parties: Wayne RUSSELL, Plaintiff v. KEYES FIBRE CO., Ken Orze, Individually and as Agent of Keyes Fibre, and Frank Gavrilos, Individually and as Agent of Keyes Fibre, Defendants.
• Court: U.S. District Court — Northern District of Indiana

771 F. Supp. 951

Wayne RUSSELL, Plaintiff v. KEYES FIBRE CO., Ken Orze, Individually and as Agent of Keyes Fibre, and Frank Gavrilos, Individually and as Agent of Keyes Fibre, Defendants.

No. H 90-127.

United States District Court, N.D. Indiana, Hammond Division.

February 5, 1991.

Charles R. Deible, Hammond, Ind., Rosalie B. Levinson and Donald P. Levinson, Merrillville, Ind., for plaintiff.

James E. McHie, McHie, Myers, McHie & Enslen, Hammond, Ind., Richard E. Lieberman, Carol L. O'Brien, James A. Burns, Jr. Ross & Hardies, Chicago, Ill., for defendants.

ORDER

MOODY, District Judge.

This action is again before the court on the defendant's "Motion for Summary Judgment," filed with a supporting brief, statement of material facts, proposed conclusions of law, and a proposed summary judgment on November 30, 1990. This court explained the factual, jurisdictional, procedural, and substantive law background of this motion in an order of January 11, 1991 ("January 11 order"). The court's January 11 order granted summary judgment with respect to one of plaintiff's claims, which alleged breach of contract under Indiana law. However, the court took the motion under advisement with respect to plaintiff's remaining (1) federal question claim under the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. §§ 621-34 (1985 & Supp.1990), and (2) defamation claim under Indiana law.

For the reasons discussed below, the court now DENIES SUMMARY JUDGMENT as to the remaining claims.

I. BACKGROUND

The January 11 order set forth the factual background of this action:

The undisputed facts show that plaintiff worked as an hourly employee for defendant Keyes Fibre Co. from 1950 to 1965, and as a production shift supervisor from 1965 to 1989. In July of 1989, plaintiff transferred to the newly created position of training coordinator, serving in that position until his termination in October of 1989. At relevant times, defendant Frank Gavrilos was the overall production manager at Keyes Fibre, and defendant Ken Orze was the overall plant manager.

In October of 1989, when plaintiff was 57 years old, Gavrilos informed Orze about an incident in which Gavrilos found plaintiff and others loading plaintiff's company-owned desk into plaintiff's personal vehicle. Soon thereafter, Orze fired plaintiff, asserting the desk incident as cause. Keyes Fibre has never replaced the plaintiff, nor has it sought a replacement.

Plaintiff subsequently applied for unemployment benefits from the State of Indiana, which resulted in an inquiry by the state into the reasons for his termination. In the Indiana unemployment proceedings, agents of Keyes Fibre stated that the company's reason for firing plaintiff was attempted theft of company property.

This court took the defendant's motion for summary judgment under advisement because a discovery dispute erupted late in the case. The court's January 11 order resolved that dispute and reopened discovery for the limited purpose of allowing plaintiff to depose one Robert Dare, a former employee of defendant Keyes Fibre. The January 11 order recognized that it would be improper to rule on the defendant's motion until the plaintiff had an opportunity to present exhibits in opposition to the motion for summary judgment, which might arise from the deposition of Mr. Dare.

On January 22, 1991, the plaintiff filed his "Supplement to Plaintiff's Response to Defendants' Motion for Summary Judgment." With this filing, plaintiff has submitted, inter alia, an affidavit of Mr. Dare.¹ The defendants then responded with a "Supplemental Brief in Support of Summary Judgment," filed January 25, 1991. Plaintiff replied with a "Response to Defendants' Supplemental Brief in Support of Summary Judgment," filed January 29, 1991. Seeking the last word, as is contemplated by Local Rule 9, the moving defendants replied with yet another brief on January 30, 1991, styled "Defendants' Reply to Plaintiff's Response to Defendants' Supplemental Summary Judgment Brief." In light of these filings, together with the procedures and substantive law discussed in the court's January 11 order, the court turns now to the remaining merits of the defendants' summary judgment motion.

II. CLAIM UNDER THE ADEA

The January 11 order carries the court almost to the end of its ADEA analysis.

Plaintiff's ADEA claim turns on his ability to present either direct evidence of discrimination or indirect proof through a burden shifting analysis. It appears from plaintiff's response to the defendants' summary judgment motion that he has no direct evidence of discrimination. Therefore, plaintiff must rely on burden shifting. Under the burden shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as applied to the ADEA in such cases as Weihaupt v. American Medical Ass'n, 874 F.2d 419, 427 (7th Cir.1989), the plaintiff must first show facts establishing a prima facie case sufficient to call for evidence from a defendant. In most cases, plaintiff "must establish that: (1) he was in the protected class (age 40 or older); (2) his job performance met his employers' legitimate expectations; (3) he was discharged or demoted; and (4) the employer sought a replacement for him." Weihaupt v. American Medical Ass'n, 874 F.2d 419, 427 (7th Cir.1989). footnote: The court notes some confusion in this circuit concerning the replacement prong. Some case law suggests that the replacement must be a younger person; other case law suggests the replacement may be any person. See Weihaupt, at 874 F.2d 427 n. 2.

In a case like this, however, where the defendant employer never sought a replacement, and where the job was newly created especially for the plaintiff only a few months before termination, this court will carefully scrutinize the replacement element of the prima facie case. As the Seventh Circuit has explained, "The facts in any employment discrimination case will vary so that the proof required to make a prima facie showing in one case `is not necessarily applicable in every respect to differing factual situations.'" Stumph v. Thomas & Skinner Inc., 770 F.2d 93, 96 (7th Cir.1985) (quoting McDonnell Douglas, 411 U.S. at 803 n. 13 93 S.Ct. at 1824 n. 13.). In the circumstances of this case, the replacement element is not proper, and should be dropped. "The common sense of this approach is obvious; where a person's job is eliminated, there can be no showing of replacement.... An employee nonetheless may have been terminated because of his age and therefore be entitled to relief under the ADEA." Stumph, at 770 F.2d 96 (in context of large scale reduction in force).

A contrary holding would lend itself to a cunning use by employers bent on avoiding the ADEA. Such an employer might create an unnecessary job description, shift a protected worker into that job, and, after a brief period, fire him. Because the job is unnecessary, there will be no replacement, and the plaintiff's prima facie case will always fail. Absent direct evidence of age discrimination, the victim of such a maneuver would lack a remedy under the ADEA.

In the summary judgment context, the ADEA plaintiff need only show a genuine dispute with regard to the elements of his prima facie case. He need not establish them as true. In this action, the plaintiff has met his prima facie burden. It is undisputed that plaintiff was fired, and that he was over 40 at the time. The only remaining element of the prima facie case, as applied, is job performance. In his affidavit in response to the motion for summary judgment, plaintiff states that by the time of his termination he "had been a loyal, trusted employee of Keyes Fibre Company for 39 years." This is some evidence supporting the performance element, even if it is self-serving. It is, in the court's view, sufficient evidence to create a genuine issue of material fact on a motion for summary judgment.

Thus, plaintiff passes the prima facie case barrier, and thereby transfers the burden to defendant to show a legitimate reason for firing him. This the defendants do by detailing the desk incident and arguing it presented a legitimate cause for terminating even a long-term employee like plaintiff. See, Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 560 (7th Cir.), cert. denied 484 U.S. 977 108 S.Ct. 488, 98 L.Ed.2d 486 (1987) (the discrimination laws do not second guess non-discriminatory business decisions, no matter how wrong they might seem). Accordingly, the burden shifts back to the plaintiff to show that this reason was a pretext for age discrimination.

The January 11 order did not go on to inquire whether the plaintiff had established a genuine issue of fact with regard to pretext. Rather, the court took that issue under advisement pending the close of discovery and submission of plaintiff's supplemental response. The record for summary judgment purposes is now complete, and the court turns to the merits of the pretext issue.

The pretext inquiry is straightforward: Has the plaintiff produced material allowing an inference that the desk incident was a pretext for age discrimination by the defendants? In making this inquiry, however, the court is conscious of an important procedural principle oft-repeated in this circuit: Summary judgment is generally inappropriate for resolving the issues of motive or intent that tend to dominate employment discrimination cases. E.g. Stumph v. Thomas & Skinner Inc., 770 F.2d 93, 97 (7th Cir.1985); Kephart v. Institute of Gas. Tech., 630 F.2d 1217, 1218 (7th Cir. 1980), cert. denied 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). Further, as in every summary judgment proceeding, the court will construe the record and the inferences drawn from it in the light most favorable to the non-moving party. Bartman v. Allis Chalmers Corp., 799 F.2d 311, 312 (7th Cir.1986).

Turning to the substance of the pretext inquiry, there are two methods of proof. Employment...