Taylor v. Canteen Corp.

• Decision Date: 30 November 1995
• Docket Number: No. 95-1107,95-1107
• Citation: 69 F.3d 773
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 310, 67 Empl. Prac. Dec. P 43,773 Louise TAYLOR, Executrix for the Estate of Jerry Taylor, Plaintiff-Appellant, v. CANTEEN CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 773

69 F.3d 773

69 Fair Empl.Prac.Cas. (BNA) 310,

67 Empl. Prac. Dec. P 43,773

Louise TAYLOR, Executrix for the Estate of Jerry Taylor Plaintiff-Appellant, v. CANTEEN CORPORATION, Defendant-Appellee.

No. 95-1107.

United States Court of Appeals Seventh Circuit.

Argued May 31, 1995.

Decided Oct. 27, 1995.

Rehearing Denied Nov. 30, 1995.

Patricia C. Benassi, argued, Benassi & Benassi, Peoria, IL, for Plaintiff-Appellant.

Max G. Brittain, Jr., argued, Wendy L. Nutt, Brittain, Sledz, Morris & Slovak, Chicago, IL, Homer W. Keller, Westervelt, Johnson, Nicoll & Keller, Peoria, IL, for Defendant-Appellee.

Before POSNER, Chief Judge, RIPPLE, Circuit Judge, and NORGLE, District Judge. ^*

RIPPLE, Circuit Judge.

Jerry Taylor filed suit under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634, after he lost his job as a maintenance supervisor in the vending division at the Canteen Corporation ("Canteen"). He also brought a supplemental Illinois state law claim against Canteen alleging intentional breach of an oral employment contract. The district court granted Canteen's motion for summary judgment on both claims and Taylor, represented by the executrix of his estate, appeals. For the reasons that follow, we affirm the judgment of the district court in part and reverse and remand in part.

I BACKGROUND

A. Facts

Canteen is engaged in the business of providing on-site cafeteria and food vending services to businesses, governmental entities, and health care and recreational facilities across the nation. The food services division operates full service employee cafeterias on clients' premises, provides catering services, and operates food concessions at sports arenas and public facilities. The vending division provides clients with coin operated vending machines that are serviced regularly by Canteen personnel.

Jerry Taylor began working for Canteen in 1954 in its Peoria Region vending division. Taylor became a member of a collective bargaining unit in 1964 and held various positions in the bargaining unit until August 1978 when he took a position as a maintenance supervisor. Canteen solicited Taylor, who at the time was the most senior maintenance person working for the company, for the position. Taylor resigned from his union-secured job when he accepted the supervisor position and claims that Donald Bross, then-Regional Manager for Canteen, told Taylor that he would have "nothing to worry about" in regard to his loss of seniority and job security. Taylor claims he was told he would "not have to be concerned with job security" and that he could work as a maintenance supervisor for "as long as he wished or until he retired." Taylor maintains that he accepted the offer in reliance on these assurances. Canteen denies that any such promises were made to Taylor.

In the early 1980s, Canteen's business base was dependent upon large manufacturing accounts. In Peoria, Caterpillar Corporation accounted for eighty percent of Canteen's vending business in 1983 and 1984. The economy in the Peoria area declined in the early to mid-1980s, and Caterpillar in particular experienced a sharp economic downturn. Between 1981 and 1984, Canteen's vending revenues fell by thirty-five percent and the number of vending routes decreased by forty-four percent. In late 1984 and early 1985, twelve jobs, including Taylor's, were eliminated in the Peoria Region. At the time his job was eliminated, Taylor was the oldest employee and had been employed longer than any other employee in the region; he was fifty-six years old and had worked for Canteen for thirty years. Taylor was the only vending department manager who was eligible for early retirement.

On October 22, 1984, Taylor was called to a meeting with Jim Richardson, the general manager of the Peoria Region vending division, and John Herring, the district manager of Canteen's vending division. The parties dispute much of what was said at the meeting; though it is clear, however, that Taylor was told that his position would be eliminated as of November 1, 1984 and that there were no other vending positions within Canteen to which he could be transferred. Canteen maintains that Richardson gave Taylor three options--early retirement, lay off with the possibility of recall, or movement into the clerical or food services area--and that Taylor was told to contact Richardson regarding his choice of options. According to Canteen, Taylor did not indicate that he wanted to transfer to another division. Taylor maintains that he was not given any employment option aside from early retirement, that he told Richardson that he did not want to retire, and that Richardson did not tell him that he needed to contact Richardson in order to be considered for another position. Taylor's position as a maintenance supervisor was not reactivated and his former duties were assumed by other members of Canteen's vending division. Taylor was not rehired following the termination of his position.

In July 1984, Taylor suffered a series of transient ischemic attacks ("TIAs"), which involve brief interruptions of the blood supply to the brain, that impaired his memory. Taylor went on short-term disability leave until early October 1984. On October 8, 1984, Taylor returned to work and presented Canteen with a written release from his physician allowing him to return to work. In late October, approximately a week after Taylor was notified that his job was being terminated, he experienced a reoccurrence of TIA and the consequent memory problems. Again, he went on short-term disability. In January 1985, Dr. Mac Bradley examined Taylor and reported that he had organic brain impairment and had problems with his memory and visual-spacial orientation. Dr. Bradley, a psychologist, believed Taylor could not return to his former work but might be able to perform non-supervisory work:

My diagnosis would be Dementia (DSM 294.10) and Adjustment Disorder with depressed mood (DSM 309.00). I cannot say exactly when he sustained the brain damage, and it does seem that the loss of his job was an important life influencing factor in addition to the brain damage. While Mr. Taylor may not be able to return to his former job, I would hope that gainful employment could be found for him. I think there are a number of jobs that he could do and could do well, although, these may not be supervisory positions similar to the ones he has had.

On February 13, 1985 Taylor's short-term disability expired. Taylor then began receiving vacation and severance pay which continued until October 1985. Taylor also received unemployment insurance benefits. In April 1985, Taylor applied for long-term disability benefits under Canteen's benefit plan, as well as for Social Security Disability Insurance Benefits. At that time, Dr. John McLean and Dr. Gregg Stoner examined Taylor and submitted a report to Canteen's insurance company that stated Taylor had been continuously and totally disabled since October 30, 1984, was unable to do any work requiring processing of information, and would never be able to return to work. In July 1985, Dr. Mortimer Beck, a psychiatrist, examined Taylor and also submitted a letter to Canteen's insurance company stating that Taylor was not disabled and was able to return to work. At this time, Taylor was also examined by Dr. Abul Faizi who submitted a report to the Social Security Administration stating that Taylor suffered from organic brain damage and had significant impairment in memory, problem solving skills and abstract thinking. Taylor was denied benefits under Canteen's long-term disability plan but awarded Social Security Disability Insurance Benefits in August 1985.

B. Earlier Proceedings

Taylor filed an age discrimination claim against Canteen with the Illinois Department of Human Rights and brought a breach of contract claim against Canteen in Illinois state court. Following passage of the Age Discrimination Claims Assistance Act of 1988, Pub.L. No. 100-283, 102 Stat. 78 (1988); see 29 U.S.C.A. Sec. 626 note, Taylor consolidated his claims in federal district court. Canteen then filed separate motions for summary judgment on each of Taylor's claims.

The district court initially determined that, contrary to Taylor's claim that he was not terminated until October 1985, the record indicated that Taylor was terminated effective November 1, 1984. The court then determined that Taylor was unable to establish that the reasons Canteen proffered for his termination without recall or transfer were pretextual. There was no dispute, the court noted, that Taylor was told during the October 22, 1984 meeting that his managerial position was being eliminated as of November 1 and that there were no positions to which he could transfer. Alternatively, the court presumed that Taylor's termination date could be no later than February 13, 1985. At that time, Taylor's short-term disability benefits expired and he began receiving severance pay and unemployment benefits. Taylor could not plausibly argue, concluded the court, that he was employed after the date upon which the record established he had been severed from Canteen's payroll. These alternative termination dates proved significant. Because Taylor was unable to show (1) that any position for which he was qualified became available at Canteen prior to February 13, 1985 or (2) that he ever applied for any specific position within the company, the district court determined that he could not establish that Canteen's reasons for failing to recall or transfer him to non-existent or non-preferenced positions were pretextual.

The district court also granted summary judgment against Taylor on his supplemental breach of contract claim. The court recognized that, under Illinois law, there is a rebuttable presumption that employment is "at will." A plaintiff seeking to rebut this presumption on the ground that an oral employment contract existed must show the...