Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 40 EPD ¶36,349, Robert J. Ruth, Plaintiff v. Allis-Chalmers Corporation dba American Air Filter Company, Defendant., (Apr. 18, 1986), (Apr. 18, 1986)

Robert J. Ruth, Plaintiff v. Allis-Chalmers Corporation dba American Air Filter Company, Defendant.

United States District Court, Western District of Kentucky, Louisville Division.Civil Action No. C 83-0360-L(B), April 18, 1986

Age Discrimination in Employment Act of 1967

Age Discrimination--Termination--Denial of Transfer--Training Needs.

--The termination of a 62-year-old executive level employee in a corporate reorganization in which his position was eliminated and the failure to transfer him to another position, which would have entailed training and extra relocation expenses, did not amount to unlawful discrimination on account of age. The employer’s lack of willingness to bear the expenses of relocation and training was no basis for inferring age discrimination.

Back reference.-- ¶602.32 .

Court Procedures--Summary Judgment--Motive or Intent--Fairness Issue.

--While cases involving issues of motive or intent are not generally to be disposed of by summary judgment, the absence of any basis for inferring that the job of an executive level employee was eliminated because of his age warrants summary dismissal of the complaint. A question as to the fairness of the business decision not to train him for another position had no bearing on the age discrimination claim.

Back reference.-- ¶2250.25 .

Kentucky--Civil Rights Act

Age Discrimination--Standard of Proof.

--As under federal law, an age bias complainant must present cold hard facts creating an inference showing that age was a determining factor in the employment action taken, in order to overcome a motion for summary dismissal of the complaint.

Back reference.--Kentucky ¶23,199 .

Richard L. Caslin, Louisville, Kentucky; Wallace H. Spalding, Jr., Louisville, Kentucky, for Plaintiff.

Edwin Hopson, Louisville, Kentucky, for Defendant.

[Statement of Case]

Ballantine,D.J.: This case is before the Court on motion of the defendant, Allis-Chalmers Corporation, d/b/a/ American Air Filter Company (AAF), for summary judgment. The complaint against defendant was brought pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq., and the Kentucky Civil Rights laws, Ky. Rev. Stat. 344.010, et seq.

A summary of the background of plaintiff’s employment history with the defendant is set out in the Court’s memorandum and order of February 11, 1985. The thrust of plaintiff’s complaints about AAF is that after his position was eliminated in November of 1981, defendant should have considered him for a position as a Regional Sales Manager. In addition to requiring the duties performed by plaintiff in his position as Manager of Field Office Administration, the Regional Sales Manager positions required recent familiarity with the product line of the company.

Defendant’s position is that plaintiff was not considered for one of the positions as Regional Sales Manager because of lack of recent product familiarity and because the company did not want to bear the expense of his relocation from Louisville to assume the position. It is undisputed that plaintiff’s job was eliminated in the two major reorganizations occurring in 1980 and 1981 and that at that time plaintiff did not protest the elimination of his job or request consideration as a candidate for a Regional Sales Manager position. Plaintiff, did, however, indicate on a form which was part of a progress review, a career goal as Sales Manager or Marketing Manager of a Division.

Defendant alleges in its motion for summary judgment that plaintiff has failed to produce any evidence whatsoever of any discrimination by American Air Filter on the basis of age. The major issue before the Court at this time is whether plaintiff has presented a prima facie case sufficient to withstand defendant’s motion for summary judgment.

[Proof of Discrimination]

The ADEA provides that “[i]t shall be unlawful for an employer ... to discharge any individual ... because of [his] age. ...” 29 U.S.C. §623(a)(1) . The statute was enacted for the purpose of protecting the older worker, for whom no protection was offered under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. The ADEA prohibits discrimination against those employees who are between the ages of forty and seventy. Its purpose is not to guarantee a job to the older worker or to secure his employment at the expense of younger workers, but only to assure that his age is afforded a neutral status in the decision whether to retain or terminate him. Because of the inevitability of the aging process and the frequency with which discharged employees will be replaced by others younger than they, an age discrimination analysis does not lend itself to automatic assumptions based upon the replacement of a worker by one who is younger. Laugesen v. Anaconda Company [9 EPD ¶9870 ], 510 F.2d 307, 313 n. 4 (6th Cir. 1975).

Nevertheless, the case of McDonnell Douglas v. Green [5 EPD ¶8607 ], 411 U.S. 792 (1973), is often used as a point of departure for establishing the elements of age discrimination. McDonnell Douglas outlined the elements of racial discrimination which, when modified to fit age discrimination cases, would require a plaintiff to prove that: (1) he was a member of the protected class; (2) he was discharged; (3) he was qualified for the position; and (4) he was replaced by a younger person. Ackerman v. Diamond Shamrock Corp. [28 EPD ¶32,408 ], 670 F.2d 66, 69 (6th Cir. 1982).

However, when applied to a reduction in forces within a company or to a corporate reorganization, the Ackerman guidelines will not allow the plaintiff to establish a prima facie case. In the instance of a corporate reorganization, a plaintiff is generally not able to show that he was replaced by a younger person, and he is unable to satisfy the elements of a prima facie case without this showing. LaGrant v. Gulf & Western Mfg. Co., Inc. [35 EPD ¶34,794 ], 748 F.2d 1087, 1090 (6th Cir. 1984); Sahadi v. Reynolds Chemical [24 EPD ¶31,237 ], 636 F.2d 1116 (6th Cir. 1980). In a reorganization case, where the plaintiff was not directly replaced by a younger employee, the plaintiff is required to come forward with additional direct, circumstantial, or statistical evidence that age was a factor in his termination. LaGrant, 748 F.2d at 1091; Williams v. General Motos Corp. [27 EPD ¶32,126 ], 656 F.2d 120 (5th Cir. 1981), cert. denied [28 EPD ¶32,435], 455 U.S. 943 (1982).

Whether in the typical discrimination case or in one involving a corporate reorganization, this circuit has espoused a case-by-case approach for analysis. Sahadi, 636 F.2d at 1118 n. 3. The ultimate issue is whether age was a determining factor in an employee’s discharge. Use of the McDonnell Douglas criteria is neither required nor prohibited, but the criteria are not to be automatically applied. See, e.g., Blackwell v. Sun Electric Corporation [30 EPD ¶33,268 ], 696 F.2d 1176, 1179 (6th Cir. 1983).

In addition to the McDonnell Douglas guidelines, further proof of a prima facie case in an age discrimination action was required in Rose v. National Cash Register Corp. [31 EPD ¶33,485 ], 703 F.2d 225 (6th Cir. 1983). In that case the Court stated that plaintiff had failed to present a prima facie case if there were no reasonable inference to suggest that he was discriminated against because of his age. Id. at 277, citing Sahadi, 636 F.2d at 1117. Hence, a prima facie case is established only when plaintiff presents some evidence that age was a factor in his discharge. A prima facie age discrimination case is one sufficient to withstand a motion for summary judgment or a motion for directed verdict. Rose, 703 F.2d at 227; LaGrant, 748 F.2d at 1090.

With the McDonnell Douglas formula as a general guidelines, we find that insufficient evidence in this case has been presented to establish a prima facie case of age discrimination. Mr. Ruth was a member of the protected class, being 62 years old at the time his employment with the defendant was terminated. He was discharged from his position. However, we find that he has not been able to demonstrate that he was qualified for the new position which he sought to fill, that of Regional Manager or Branch Manager. In addition, we find that plaintiff has presented insufficient direct or circumstantial evidence which would indicate that age was a factor in his discharge.

[Training Needs]

The primary area of disagreement between the parties concerns plaintiff’s ability to fill the Regional Manager or Branch Manager positions which were filled by other employees. In arguing the point that he was qualified for these positions, plaintiff stated that in his own opinion the product line of American Air Filter had not substantially changed over the decades and that he could easily update himself to assume the responsibilities of a Regional Manager. The testimony of Frank Carroll established that in his opinion plaintiff with a six-month refresher course could become competent for any job within the company, and he believed plaintiff would have been qualified as a Branch Manager in 1980 to 1982.

Despite the contentions of plaintiff and Mr. Carroll that only a limited training period would render plaintiff able to assume a Regional Manager position, it is admitted by all parties that at least some period of training would have been required before plaintiff could handle the new position. Plaintiff’s belief is undoubtedly true, also, that $10,000 would be a small price to pay to relocate him when considering his years of service with the company. However, the company’s lack of willingness to expend money to train him has no bearing in his age discrimination claim. These two circumstances do not in themselves give rise to the necessary inference that age discrimination was a determining factor in plaintiff’s discharge. Instead, they go to the business decisions exercised by the company during its two major reorganizations.

In Ackerman, the Court stated that the ADEA “was not intended as a vehicle for judicial review of business decisions.” Id., 670 F.2d at 70, citing Kephart v. Institute of Gas Technology [24 EPD ¶31,236 ], 630 F.2d 1217, 1223 (7th Cir. 1980). Although Ackerman involved the voluntary retirement of an employee who later brought a claim under the ADEA, its holding is nonetheless applicable here. There is no question that plaintiff’s job was eliminated, as he himself states in his deposition. The plaintiff may have arrived at personal suspicions and conclusions concerning the company’s motivation to eliminate him from his position, but no evidence has been produced that would lead a reasonable jury to find that he was discharged, or that he was not offered a Regional Manager or Branch Manager position, because of his age. Rose, 703 F.2d at 227.

On a motion for summary judgment, the movant has the burden of showing conclusively that no genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598 (1970); Fitzke v. Shappell, 468 F.2d 1072, 1077 (6th Cir. 1972). Generally, a case involving elements of motive or intent is not suited to disposition on summary judgment. Smith v. Hudson, 600 F.2d 60, 66 (6th Cir. 1979). However, this principle is not unvarying, and a summary judgment is sometimes appropriate even in motive or intent cases. In Ackerman, the court said, “While summary judgment often is inappropriate to dispose of cases involving issues of intent and motive, the moving party has a right to judgment without the expense of a trial where there are no issues of fact left for the trier of fact to determine.” Id., 670 F.2d at 69.

We find that there are no genuine issues of fact remaining in this case which would preclude the granting of summary judgment. Plaintiff alleges material issues of fact concerning the qualifications for the Regional Manager or Branch Manager positions and the length of time it would take to train plaintiff for one of these positions. As stated above, there is no dispute that some training for these positions would be required. The amount of time required would go toward the soundness of the business judgment of defendant in retaining or eliminating its employees rather than being a material issue of fact tending to prove the existence of age discrimination.

The record is replete with testimony that plaintiff was thought well of by his co-workers and was efficient in handling his duties. It is not the function of the Court to second-guess the business decisions made by defendant or to judge whether plaintiff’s position would have been eliminated or whether the company treated him fairly by not offering him another position. The question is not whether plaintiff was treated fairly, but whether he was discriminated against on the basis of his age. Sahadi, 636 F.2d at 1117. Considering all the information contained in the record, we find that plaintiff has presented no reasonable inference that can be drawn, without engaging in speculation, that his job was eliminated because of his age or that he was not considered for another position on the basis of his age.

[State Law Claim]

Plaintiff also brought this action under the Kentucky Civil Rights laws, Ky. Rev. Stat. 344.010 et seq. The Kentucky age discrimination statute is modeled after the federal age discrimination statute, and plaintiff is held to the same standard of proof under state law as under federal law. Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226, 229 (Ky. 1984). To prevail under Kentucky law against a motion for summary judgment, plaintiff must prove “cold hard facts creating an inference showing age discrimination was a determining factor” in his discharge. Id. Because plaintiff did not meet this standard of proof, defendant is entitled to summary judgment under the Kentucky statute as well.

There being no issue of material fact, the motion of defendant for summary judgment will be granted, and an appropriate order has been entered this 18th day of April, 1986.

Order

For the reasons set forth in the memorandum filed this date,

it is Ordered that the motion of the defendant, Allis-Chalmers Corporation, d/b/a/American Air Filter Company, for summary judgment on the claim of the plaintiff, Robert J. Ruth, against it be and it is hereby granted, and this action is hereby dismissed with prejudice.

It is further Ordered that the motion of plaintiff to compel discovery of documents is denied, as the Court is of the opinion the documents sought could produce no facts supportive of plaintiff’s age discrimination claim which would change the results of the summary judgment.

It is further Ordered that plaintiff’s motion to amend the complaint under Rule 15(b) is denied, as it seeks to assert causes of action occurring after plaintiff’s termination by the defendant.

There is no just reason for delay, and this is a final and appealable order.