we BR

In sum, Buff falls far short of proving constructive discharge.

Buff has also failed to show that his reassignment was a
demotion. While his responsibilities were changed, his salary
remained the same and he received additional benefits in the form
of the increased worksite flexibility and job security that
accompanied his employment contract. And so Buff's failure to
show a constructive discharge is coupled with his failure to show
an adverse employment action. And that means he has fallen short
on not just one but two of the components of a prima facie case
of age discrimination.

To further illustrate the poverty of Buff's case, even if he
had survived the prima facie analysis (as he has not), he would
still fall at the hurdle of establishing that Tempel's
articulated reason for his reassignment--his deficiencies as
manager that had created a severe morale crisis among the Portage
employees--was a pretext for age discrimination. On that score
Buff would have had to show either (1) that Tempel was more
likely motivated by a discriminatory reason than by its proffered
reasons or (2) that its proffered reasons are unworthy of
credence (McCoy v. WGN Cont'] Broad. Co., 957 F.2d 368, 372 (7
Cir. 1992)). And nothing in the evidence suggests either of
those things.

As supposed evidence of pretext Buff identifies (1) a 1998

evaluation from Valaoras that states his communications skills

13


oe aE

Tempel President and Chief Operating Officer George Valaoras
(“valaoras”) and Tempel Chairman Vincent Buonanno (*Buonanno” )
approved of Buff's promotion (B. Resp. qis). As the Portage
General Manager, Buff reported directly to Valaoras (B. Resp.
q29).

Shortly after Buff's promotion Valaoras began to perceive
that Buff's managerial shortcomings continued to affect his
ability to manage his people effectively (B. Resp. 23). In his
1995 performance evaluation Valaoras rated Buff's communication
and interpersonal skills as below standard (B. Resp. 25). Then
in his 1996 evaluation Valaoras recommended that Buff receive
additional counseling or training in those areas (B. Resp. 26).
Buff attended at least five different courses in leadership and
interpersonal skills-building, but Valaoras did not observe
Buff's skills to be improving as a result, and he continued to
have discussions with Buff about those problems (B. Resp. q{26e-
27).

In 1999 Tempel Human Resources Manager Michael McMinn
(*MeMinn” ) began to visit the Portage facility on a regular basis
to answer employees' questions about Tempel's personnel policies
and employee benefits (B. Resp. (32). During those visits

employees told McMinn that they were dissatisfied with Buff's


i
i
:
i
i
|
1

beginners and the people who have been here some years
now and have proven their worthiness and are ready to
step up to more responsibility? For those who are the
younger ones, the question must be asked, what are we
doing to prepare ourselves in education and training and
in learning everything we can do to take the baton of
service and leadership? I think the passing of the baton
has two sides of responsibility. The responsibility of those
who still have the baton and the ones who want to get
their hands on it. In the long run, the best company in the
lamination industry or any business that will have the
longest term strength will not be the company which has
the fastest sprinter, but the company which has the best
relay race team that is constantly passing the batons of
knowledge and leadership to others.

’

The Tempel News is a publication of the Tempel Steel
Company for all of its employees and their families.
Editorial offices are at:

Tempel Steel Company

5215 Old Orchard Road, Skokie, Llinois 60077-1076.
Submit articles and photos for Tempel News to
The Editor c/o the Corporate Office.

October, 1998

Inside this Issue

Chairman's Viewpoint ...........
ident's Message...

Retirements

Tempel Tots and Births ...............
Anniversaries

vision slitter

Cover Photo: The New Motor
-- see article inside page 8


Tempel badly needs new blood, young blood, new ideas
and people who don't always accept that yesterday's way
was good enough. The youth have to show that they're
worthy of the leadership baton by service and by
knowledge. And the elders have to share the baton and
pass the baton by the training, encouragement and
inclusion of young people in the day-to-day business.

But as a matter of law, favorable comments about “young blood”
are themselves insufficient to create a material issue of fact

regarding age discrimination (Fortier v. Ameritech Mobile

Communications, Inc., 161 F.3d 1106, 1113 (7 Cir. 1998)). And
far from revealing any unlawful bias against older employees,
Buonanno's remarks simply encouraged the training and mentoring
of younger employees.

Indeed, Buff's emphasis on that language is extraordinarily
misleading. To understand fully the context in which Bonanno
included that exhortation--part of a “celebration of long-term
service at Tempel” by a ceremony honoring employees with more
than 25 years' service--it is really necessary to read the entire
column. And so a photocopy of Buff Dep. Ex. 16 is attached as an
appendix to this opinion. Buonanno's glowing tribute there to
the more than 150 “25-year veterans” reflects the antithesis of
an anti-age animus--as he said in part:

[T]here are some common attributes of 25-year veterans

[of Tempel]--persistence, loyalty, integrity, and know-

how....The debt to these people is immense and it's

often said, but worth repeating, that our Company's

human resources are much greater than any machinery or

physical assets. Collective human knowledge and
commitment are unbeatable and irreplaceable.


recommendation (id.).

On February 22, 2000 Valaoras and Buonanno met with Buff to
tell him of his reassignment and Bender's promotion (B. Resp.
440). At the same time they offered Buff a position as Senior
Design Engineer, with no loss of salary and the right to
negotiate a contract concerning his new role with Tempel (id.).
Buff had never before been offered an employment contract with
Tempel, and Tempel did not ordinarily enter into such contracts
with executives (B. Resp. 443).

At or shortly after that meeting, Tempel gave Buff a draft
contract (B. Resp. §42). Among other things the contract
(1) offered Buff the same annual salary that he had received as
General Manager of Portage, (2) provided that Buff could perform
his duties at any location of his choosing within 100 miles of
Chicago and (3) specified that he was eligible for a bonus of up
to 6% of his annual salary (B. Resp. 942). Under that contract
Buff's employment would continue indefinitely, and he was
entitled to severance pay if Tempel terminated him without cause
(id.). Initially Tempel offered Buff 30 days of severance pay,
but at Buff's request that was later increased to a full year's
salary (B. Resp. §44). Nonetheless Buff felt that the
reassignment was demeaning and humiliating because (1) his pay
grade level was reduced from 18 to 13, (2) he was now required to

report to former subordinate Bender and (3) he was reassigned


soemmaneee a

ii ated

performance as Manager (T. St. §33).? By the end of 1999 almost
every Portage employee had complained to McMinn about Buff's
managerial incompetence (id.). McMinn reported to Valaoras that
he perceived a serious problem with employee morale at Portage
(B. Resp. 4936). At Valaoras' request McMinn also discussed that
problem with Buonanno (id.). By early 2000 Valaoras had
concluded that Buff's managerial incompetence had created an
employee relations crisis that threatened the long-term success
of Tempel's operations at Portage (T. St. 437).

In early 2000 Valaoras recommended to Buonanno and Tempel's
Executive Committee that Buff be removed from his position as
General Manager of Portage (B. Resp. §38). That recommendation
was adopted, but because Buff was a long-time Tempel employee
with valuable engineering skills, Buonanno and the Executive
Committee decided to retain Buff at the same salary and reassign
him to a non-managerial position (id.). Valaoras recommended
that Mark Bender (“Bender”), who had previously been the leader
of Tempel's die design team, replace Buff as General Manager (B.

Resp. 439). Buonanno and the Executive Committee adopted that

2? Buff does not specifically admit or deny T. St. 433--he

simply asserts “[t]his is all hearsay” (B. Resp. 933). That
hearsay objection is groundless, for Tempel does not offer that
statement to prove the matter asserted--instead the evidence is
proffered to show that the statements were made to McMinn (see,
e.g., Aetna Life Ins. Co. v. Wise, 194 F.3d 660, 666 (7TM Cir.
1999)). Buff's attempts to deny T. St. 9937 and 39 as hearsay
fail for the same reason.


constructively discharged him in violation of ADEA.
Age Discrimination
To prevail on his age discrimination claim, Buff must prove?
that his age “actually played a role in [Tempel's decisionmaking]
process and had a determinative influence on the outcome” (Reeves

vw. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000),

quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).

Such discrimination can be established in one of two ways: with
direct or circumstantial evidence that the adverse employment
action would not have been taken but for his age (the so-called
direct method), or “by successfully navigating the course of

shifting burdens authorized in” the seminal McDonnell Douglas

‘decision (Mojica v. Gannett Co., 7 F.3d 552, 561 (7TM Cir.

1993) (en banc)). Buff attempts both methods, but he succeeds at

neither.

irect Evidence
Buff asserts that Buonanno's October 1998 column provides
direct evidence of age discrimination. That claim is based on

this statement by Buonanno (Buff Dep. Ex. 16 at RB 002):

> At this summary judgment stage, of course, Buff need not

“establish” or “prove” or “show” anything. Instead he must
merely demonstrate the existence of a genuine issue of material
fact to defeat Tempel's summary judgment motion. Though this
opinion will nonetheless frequently employ one of those quoted
terms because that is the terminology used by the cited cases,
this Court has consistently imposed that lesser burden on Buff in
testing his claims.


4 "am Minate Ord’ Form (06/97)

United States District Court, Northern District of Illinois

a
Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Milton I. Shadur than Assigned Judge
7 <—F
CASE NUMBER 00 C 7871 DATE 7/25/2002
77
. CASE Richard A. Buff vs. Tempel Steel Co.
TITLE
i [in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
| MOTION: of the motion being presented.]
4
4
DOCKET ENTRY:
‘ (1) im} Filed motion of [ use listing in “Motion” box above.]
i (2) Oo Brief in support of motion due __
(3) Oo Answer brief to motion due . Reply to answer brief due. _.
: (4) Oo Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
4 (6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at .
1 (7) o Trial[set for/re-set for] on at _
i (8) oO [Bench/Jury trial] [Hearing] held/continued to at
: (9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
" COFRCP4(m) OGeneral Rule21 OFRCP4i(a\(1) CFRCP41(a)(2).
ao [Other docket entry] Enter Memorandum Opinion and Order. Temple Steel’s motion for summary
‘ judgment is granted and this action is dismissed with prejudice. (13-1)
| ql) [For further detail see order attached to the original minute order.]
| No notices required, advised in open court. Document
Ne notes required umber of notices Number
Notices mailed by judge’s staff.
Notified counsel by telephone. J
i wv | Docketing to mail notices.
Y | Mail AO 450 form. oahesn initials
i Copy to judge/magistrate judge.
|
courtroom tL WY Opp,
| SN deputy’s S4:L hy Se iar 20
: initials <i
OT ODagpperegivesic vg py ni



subjected to a materially adverse employment action and (4) that
he was replaced by a substantially younger person (Lesch v. Crown
Cork & Seal Co., 282 F.3d 467, 472 (7 Cir. 2002)). Buff fails
on two levels: He has not proved either the second or the third
of those elements.

As for the requirement of performance to Tempel's
expectations, Buff points (1) to the fact that he continued to
receive salary increases and bonuses in the years 1997 through
1999, (2) to the reference to his “strong individual performance”
in the letter than announced his 1998 bonus and (3) to one
instance in 1999 when he successfully resolved a dispute among
employees (B. Mem. 11-12). But those items, as well as the other
bits and pieces he seeks to scrabble together, fall far short of
creating a material issue of fact in the face of the heavily
supported and undisputed facts that (1) from the time Buff was
first promoted to a managerial position his supervisors
repeatedly noted his deficiencies in communications and human
relations and (2) by the end of 1999 his supervisors believed
that he had managed to alienate most if not all Portage
employees, precipitating a serious morale crisis at that
worksite. There is no doubt that Buff failed to perform his job
to Tempel's expectations.

That alone would suffice to defeat his claim, but Buff has

also failed to show that he was subjected to a materially adverse

11


ie a ne aa

Even with reasonable inferences taken in Buff's favor, then,
Buonanno's remarks do not constitute direct evidence of age
discrimination.*

Moreover, the concept of direct evidence of age
discrimination requires a connection between the assertedly
biased statements and the adverse employment decision--in this

case the decision to reassign Buff (Gorence v. Eagle Food Ctrs.,

inc., 242 F.3d 759, 766 (7 Cir. 2001)). There is no evidence
of any such connection. Buff's claim that the column appears
“close in time to the events that led” to his reassignment is
baseless: Fully 16 months elapsed between the October 1998
publication of the column and buff's February 2000 reassignment .
Buff's attempt to establish direct evidence of age discrimination
thus fails for more than one reason.
Indirect Evidence

To prove discrimination via the McDonnell Douglas route,
Buff must first establish a prima facie case of age
discrimination by showing (1) that he was a member of the
protected class (age 40 or over), (2) that he was performing his

job to his employer's legitimate expectations, 3) that he was

* It is worth noting that Buonanno had joined in the
decision to promote Buff to the important position of Portage
General Manager in 1994, when Buff was 51 years old and was a
“25-year veteran.” It would certainly seem a strained inference
to regard Buonanno as having acquired an age-based animus against
Buff during the ensuing couple of years.

10


from a managerial position to an engineering position (B. Resp.
1946-48) .

From February 22 to March 23, 2000 Buff remained on Tempel
payroll, though he was not actually working, while he
contemplated whether he would sign the contract (B. Resp. 445).
Eventually he decided not to accept the contract, and his
employment with Tempel ceased on March 23, 2000 (id.). On
April 4, 2000 Buff began working for a competitor, National

Lamination Company (B. Resp. 449).

At no time during Buff's employment with Tempel did Valaoras

or Buonanno tell him that they felt he was too old for his job
(B. Resp. 951). Buff believes he was the victim of age
discrimination because Bender was younger than he and because
Valaoras and Buonanno were concerned about losing Bender to a
competitor because of Bender's unwillingness to wait until Buff
retired to receive a promotion (T. St. 952). Buff points to a
column Buonanno wrote for an October 1998 Tempel employee
newsletter as direct evidence of discrimination (T. St. 453).
also asserts that beginning in 1993 many long-term Tempel
employees were relieved of their positions or given less
responsibility (B. Resp. 4953, 60).

Buff filed a timely EEOC charge of age discrimination.
After EEOC issued a right -to-sue letter, Butt initiated this

action in December 2000, alleging that Tempel had demoted and

's

He


ee nee ae

perenne’

eth adie eke

Background

Tempel manufactures steel laminations used in electric
motors and transformers (B. Resp. 94). Buff was first hired as a
jib bore operator at Tempel's Portage Tool Division ("“Portage” )
in 1969, when he was 26 years old (T. St. 993, 5). Over the
years Buff held several other positions, both at Portage and in
Tempel's Motor Division plant (B. Resp. 9§5, 7). In December
1989 Tempel promoted 46-year-old Buff to Tool Engineering Manager
at its Motor Division plant (B. Resp. 8).

Starting in 1992 Buff's supervisors began to counsel Buff
that he needed to improve his managerial and communication skills
(T. St. 49). Bach of Buff's annual performance evaluations for
the years 1991 through 1993 contained detailed comments about his
need to listen and communicate more clearly and to spend more
time ensuring that his supervised employees had the guidance they
needed to excel in their positions (B. Resp. (9-12). In all
three reviews, though, Buff's technical competence was rated
“outstanding,” and each year Buff discussed his review with his
supervisor (T. St. §§9-10, 13).

Despite those poor evaluations as to Buff's managerial
abilities, Tempel promoted him to General Manager of Portage in
August 1994 (B. Resp. §18). That decision was made because
Tempel believed Buff's technical expertise would permit him to

generate new business for Portage products (B. Resp. 417).


’
4

were “improving,” (2) the fact that he did not receive written
performance evaluations for “any year after 1995”5 and
(3) evidence that four other Tempel employees aged 52 and older
were assertedly demoted (a characterization that Tempel disputes
vigorously, and with what seems to be good reason®) during the
years leading up to Buff's reassignment in 2000. But again
nothing Buff has presented casts doubt on the proof that Buff's
reassignment in 2000 was prompted by the morale crisis at Portage
created by his lack of management skills. Hence Buff's total
non-showing that Tempel's proffered reasons were pretextual
provides an independent ground for his defeat.
Conclusion

In candor, this is the kind of ADEA case that should never
have been brought. Here an employer, faced with a serious
deficiency in his managerial capacity on the part of a long-term
employee who retained a high level of personal skills while
exhibiting a serious lack of interpersonal skills,’ really went
out of its way to help a still-valued employee and to soften the

blow of his transfer out of his unsuitable management position.

5 That assertion is just plain wrong: Buff has

acknowledged an evaluation for 1998, and Tempel has also provided
a copy of Buff's 1999 evaluation (Valaoras Dep. Ex. 9).

S But given the present context, this opinion will go along

with Buff's position for purposes of summary judgment analysis.

7 That combination is scarcely extraordinary--some people

are just not cut out to be managers.

14


- Chairman’s Viewpoint

As this issue goes to press, plans are in the making
for a celebration of long-term service at Tempel on
November 15. Tempel men and women with more than 25
years with the Company will be recognized at a ceremony
dedicated to their service. The number of people in this
category is impressive, more than 150. If you consider
that half of those people have well over 25 years bringing
the average even higher, the total years of the November
15 group amounts to something over 4,000 years of
collective experience. That’s a powerful knowledge base
working in our Company. It’s impossible for us to include
at this gathering a great number of people who have
already retired with more than 25 years service as well,
but that number is also impressive. Of course, the group
of people who will be honored that evening cuts across a
range of skills, job functions, departments, abilities and
experience at Tempel and, of course, a variety of
countries of origin, religions and birthplaces. But there
are some common attributes of 25-year veterans ~
persistence, loyalty, integrity, and know-how which
ranges from the most technical to the simpler but
important amassing of knowledge of how to do our work
in a way that gives value to our customers. The debt to
these people is immense and it’s often said, but worth
Tepeating, that our Company’s human resources are much
greater than any machinery or physical assets. Collective
human knowledge and commitment are unbeatable and
irreplaceable.

But at the same moment that we acknowledge and
celebrate long service, there is a very important matter to
keep in mind. Tempel badly needs new blood, young
blood, new ideas and people who don’t always accept
that yesterday’s way was good enough. In fact, our
founding was created by a 36-year-old fellow in 1945
named Tempel Smith who had run a press shop in a
Chicago company that he didn’t think was good enough _
or efficient enough, and so he left to start Tempel. There’s
a crying need at Tempel for youth to step up to the
challenge here and take the baton. people, that is, often
much younger than many of you are and I am. It’s like a

Lat! ep ex.woZ&
FOR L.D., AS OF “Oly

Vincent J. Buonanno
Chairman
Tempel Steel Company

relay race where a runner who has finished his lap must
round the track and hand the baton to the next runner. In
industry, of course, the passing of the baton doesn’t take
seconds, but years. But for the baton to change hands, two
things have to happen. The youth have to show that
they’re worthy of the leadership baton by service and by
knowledge. And the elders have to share the baton and
pass the baton by the training, encouragement and
inclusion of young people in the day-to-day business.
That’s how it works in the slow motion relay race of an
industrial company. When that baton passing doesn’t
happen in a company, something happens. Those runners
standing waiting for the baton wait a while, watch the
long-time runners go by for a lap or two extra and then
sometimes the ones who are waiting leave and go to
another race. Often the ones that leave are the fastest
runners because they want to go somewhere where they
can show how fast they can run right now.

So, at this moment when we’re celebrating long-
term service and we're busy with so many projects at all
our plants and struggling to do better and keep our
customers supplied, there are some good questions that
we can all ask ourselves at every single level of the
company, starting with me. If we’ve been here a Jong
time, what are we doing to pass our knowledge and skills
on to other people? What are we doing to prepare the next
generation? What are we doing to encourage the

Tempei News

RBOO2



establishing the lack of a genuine issue of material fact
(Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For
that purpose this Court must “read[ ] the record in the light
most favorable to the non-moving party,” although it “is not
required to draw unreasonable inferences from the evidence” (St.

Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265

n.2 (7 Cir. 1997)). As Pipitone v. United States, 180 F.3d

859, 861 (7TM Cir. 1999), has quoted from Roger v. Yellow Freight

Sys. Inc., 21 F.3d 146, 149 (7 Cir. 1994):

A genuine issue for trial exists only when a reasonable

jury could find for the party opposing the motion based

on the record as a whole.

As with any summary judgment motion, this Court accepts
nonmovant Buff's version of any disputed facts, but only so long
as it is supported by record evidence. But the real difficulty
with Buff's submission is that he advances an entire set of
snippets that are either not relevant or not probative, or both,
on the gravamen of his claim--on the issue whether Tempel's
conduct was the product of an impermissible bias attributable to
Buff's age. What follows in the Background section, then, is
culled from the parties' submissions in which Buff has really
admitted the key elements of Tempel's submission (something that

is graphically demonstrated by the heavy prevalence of “B. Resp.

q --" citations in the Background section.


i

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD A. BUFF, )
)
Plaintiff, )
)
v. ) No. 00 C 7871

)
TEMPEL STEEL COMPANY, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Richard A. Buff (“Buff”) has charged his former employer
Tempel Steel Co. (“Tempel”) with employment discrimination
actionable under the Age Discrimination in Employment Act
(“ADEA,” 29 U.S.C. §§621-34). Tempel has filed a Fed. R. Civ. P.
(“Rule”) 56 motion for summary judgment, and both sides have
complied with this District Court's LR 56.1.1 For the reasons

set out in this memorandum opinion and order, Tempel's motion is

granted and this action is dismissed.

Summary Judgment Standards

Familiar Rule 56 principles impose on Tempel the burden of

* LR 56.1 is designed to facilitate the resolution of Rule
56 motions by calling for evidentiary statements and responses to
such statements (in each instance with record citations), thus
highlighting the existence or nonexistence of factual disputes.
This opinion cites to Tempel's LR 56.1(a) (3) statement as “T. St.

q --" and to Buff's LR 56.1(b) (3) (B) statement of additional
facts as “B. St. | --.” Buff's Response to Tempel's LR
56.1(a) (3) statement is cited as B. Resp. § --,” although where a

T. St. assertion is not contradicted a citation to the latter
ordinarily suffices. This opinion employs the same “T.” and “B.”
abbreviations in referring to the parties' exhibits and
memoranda .


i lt

a a

bo et iii, a

employment action. Buff asserts that he was both demoted and
constructively discharged, but he has demonstrated neither.

As to constructive discharge, Buff must show that he was
“forced to resign because [his] working conditions, from the
standpoint of the reasonable employee, had become unbearable”
(Grube _v. Lau Indus., Inc., 257 F.3d 723, 728 (7 Cir. 2001)).
Just to state that requirement refutes Buff's contention: After
all, Tempel offered him an alternate position with the same
salary, allowed him to select his own work location and provided
an employment contract that guaranteed Buff benefits to which he
had never before been entitled.

Although Buff adverts to his lower pay grade, the decrease
in his bonus eligibility and the promotion of a former
subordinate to the position of his supervisor, that does not
begin to approach an objectively intolerable work environment.

In fact Buff's actual salary remained unchanged--and even the
effect of his bonus eligibility decrease is unclear, because Buff
admits that he and other Tempel employees regularly received
bonuses exceeding their “maximum” eligibility. And while Buff
was told he would report to Bender, he never tried to negotiate a
different reporting arrangement with Tempel--something that could
well have been met with a positive response, given Tempel's
commendable flexibility about Buff's work location and its

agreement to his request for a better severance pay guarantee.

12


If Buff had been capable of objectivity,® he would not have
embroiled Tempel in his litigation.

Simply put, there is no way in which a reasonable inference
of age discrimination may fairly be drawn here. In Rule 56
terms, Buff has not shown a genuine issue of material (that is,
outcome-determinative) fact, and Tempel is entitled to a judgment
as a matter of law. Its summary judgment motion is granted, and

this action is dismissed with prejudice.

Milton I. Shadur
Senior United States District Judge

Date: July 25, 2002

® Robert Burns taught a lesson too often missed by
misguided employment discrimination plaintiffs:

Oh wad some power the giftie gie us

To see oursels as others see us!

It wad frae monie a blunder free us,
An' foolish notion.

15