plaintiffs’ right to a federal judicial forum, and therefore this Court does not have jurisdiction over
the dispute. The plaintiffs contend that a union cannot waive its members’ rights to a federal forum
by signing a CBA with an arbitration provision. Moreover, plaintiffs say, even if such a waiver were
possible, it has not occurred in this instance.

Plaintiffs’ position is supported by Pryner v. Tractor Supply Co., 109 F.3d 354, 363 (7th Cir.
1997). In that case, the Seventh Circuit held that a union could not consent to arbitration of federal
statutory anti-discrimination claims on behalf of its individual members by signing a CBA. Id.

The defendant, however, contends that Supreme Court’s decision in Wright v. Universal
Maritime Serv. Corp., 525 U.S. 70, 82 (1998) has thrown into question the continuing validity of the
Pryner holding. The plaintiff in that case was a longshoreman whose employment was covered by
aCBA. Id. at 72, The CBA had a broad arbitration provision which called for arbitration of all
matters contained in the contract. Id, at 73. Among the provisions in the contract was one stating
that the parties intended that the CBA would not violate any provision of state or federal law. Id.
at 81. When the plaintiff filed an ADA claim against his employer in federal court, the employer
argued that these two CBA provisions constituted a waiver of the union member’s right to seek relief
in federal court for alleged violations of statutory anti-discrimination laws. Id.

The Supreme Court disagreed. In its view, “the right to a federal judicial forum is of
sufficient importance to be protected against less-than explicit union waiver ina CBA.” Id. at 80.
Therefore, the Court reasoned, any such waiver would have to be “clear and unmistakable.” Id.
Because the arbitration provision was overly broad and the CBA did not expressly incorporate ADA

requirements, the Court ruled that the CBA in question was not clear and unmistakable. Id, at 81.


ww

substantially so. As the defense contends, “substantially younger” for ADEA purposes presumes an

age gap of 10 years or more between the plaintiff and the favored employee. Cianci v. Pettibone.

Corp., 152 F.3d 723, 728 (7th Cir. 1998); Fisher v, Wayne Dalton, Corp., 139 F.3d 1137, 1141 (7th
Cir. 1998); Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 893 (7th Cir. 1997). The plaintiffs counter
that under Hartley, when the age difference is less than ten years, the plaintiff can overcome this
presumption with evidence that the employer considered his age to be important. 124 F.3d at 893.

The youngest retained pressman was forty-eight years old, about four and a half: years younger
than Fowler. This age gap is presumptively insubstantial. The only evidence Fowler produces to
overcome this presumption are the statements by Clanton that Patten was going to get rid of everyone
over fifty and the company wanted to train young guys for the new equipment. Again, because the
decision not to retain Fowler was made by Wilhelm, and because Patten’s alleged biases were not
communicated to Wilhelm, this evidence is not sufficient to establish that age was of any importance
in the decision to let Fowler go. Failing the fourth prong, Fowler fails to present a triable case of age
discrimination under the ADEA. Therefore, the defendant’s motion for summary judgment on the
claim asserted by Fowler is granted.

The situation is different in the case of Cahill, however. Before making his selections,
Wilhelm was told not to consider Cahill because Cahill would be retiring soon. Therefore, the
decision of whether or not to select Cahill was kept out of Wilhelm’s hands. Clanton, by telling
Wilhelm not to consider Cahill, became a decision maker, and Clanton’s statements become relevant.

As direct evidence, the comments do not amount to an admission of guilt by Colfax Corp.

However, in discrimination cases, all that is required to survive summary judgment “is evidence from

which a rational trier of fact could reasonably infer that the defendant had fired the plaintiff because


addressing the issue agree that explicit mention or citation of the statute is a minimum requirement

of Wright. See Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 9 (1st Cir. 1999); Rogers v, New York

University, 220 F.3d 73, 76 (2d Cir. 2000); Brown v. ABF Freight Sys., Inc., 183 F.3d 319, 322 (4th
Cir. 1999) (“There is a significant difference, and we believe a legally dispositive one, between an
agreement not to commit discriminatory acts that are prohibited by law and an agreement to
incorporate, in toto, the anti-discrimination statutes that prohibit those acts.”); Bratten v. SSI

Services. Inc., 185 F.3d 625, 631 (6th Cir. 1999).

The Colfax CBA contains no clear and unmistakable provision compelling employees to
arbitrate anti-discrimination claims. Moreover, the Seventh Circuit has not yet ruled any such
provision to be enforceable.’ Therefore, the defendant’s motion for summary judgment on grounds

of lack of jurisdiction fails, and the merits of the ADEA claim must be examined.

Merits of the ADEA Claim

In order to prove a case of age discrimination under the ADEA, the plaintiffs must show they
would not have been laid off “but for” the defendant’s motive to discriminate against them based on
age. O’Connor v. DePaul Univ., 123 F.3d 665, 669 (7th Cir. 1997). This can be achieved in two
ways, “either through direct proof of discriminatory intent, or through indirect, burden-shifting
method of proof first elaborated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Von

Zuckerstein vy. Argonne Nat’] Lab., 984 F.2d 1467, 1472 (7th Cir. 1993).

*Defendant also asks us to consider the recent decision, Tice v. American Airlines, Inc., 288
F.3d 313 (7th Cir. 2002). However, as that case concerns issues of arbitration in the airline industry,
we do not find it controls this case.



The Wright Court made clear that only issue it decided was that the CBA before it did not waive the
union member’s right to a federal forum for ADA claims. Id. at 82 The Court did not, the opinion
emphasized, decide whether any such waiver would be valid. Id. Thus, Wright does not undermine
the Seventh Circuit’s holding in Pryner that such waivers are unenforceable.

Even if Wright did call the holding in Pryner into question, it would not have advanced the
defendant’s cause, because the alleged waiver in the Colfax CBA is not “clear and unmistakable.”®
The Colfax CBA contains no express agreement that employees will submit all federal causes of
action arising from their employment to arbitration. There is only a broad provision, calling for
arbitration, “[i]n the event of any disagreement or dispute in any Company, arising out of the
application or interpretation of this contract.” (Def.’s App. Mot. Summ. J., Catalano Dep. Ex. 1 J
26.1.)

By its own terms, the Colfax CBA must therefore explicitly incorporate statutory anti-
discrimination requirements in order to compel arbitration for a federal claim. Wright, 525 U.S. at
80. The defendant points to the anti-discrimination clause in the contract as evidence that the
statutory requirements of the ADEA are incorporated in the CBA.

The parties further affirm their mutual commitment to refrain from any employment

discrimination because of age which is prohibited by law, and to cooperate

affirmatively in the observance and implementation of any applicable governmental

regulations relating to equal employment opportunity.” Catalano Dep. Ex. 1 4.1.

However, like a similar clause found in the CBA examined by the Wright Court, this clause

does not make compliance with the ADEA a contractual commitment. Indeed, most courts

‘Though the copy of the CBA submitted by the defense for our review appears to have
expired before the alleged events leading to this action took place, both parties have submitted
motions treating the CBA as still in effect and therefore this Court will recognize it as such. (See
Catalano Dep. Ex. 1; Def.’s Mot. Summ. J. at 5-6; Pls’ Resp. Mot. Summ. J. at 26-28.)

5


(id, at 110.) It is fair, then, to say that Clanton had some input and influence in at least part of the
layoff decisions, sufficient to make his statement regarding Patten’s intention to get rid of everyone
over fifty admissible under FED. R. EviD. 801(d)(2)(D).

However, Patten and Clanton delegated their decision making responsibility to Wilhelm in
June 1999. Clanton told Wilhelm to choose two other pressmen to work with him on the web press.
Other than adding Davenport to the list, Patten and Clanton followed Wilhelm’s list in deciding
whom to retain. Because there is no evidence that Wilhelm chose unfairly based on age or that
Patten’s intention to “get rid of everyone over fifty" or Clanton’s to select “young guys” for the job
were ever communicated to Wilhelm, these comments have little value as evidence of the decision
maker’s motivations. Therefore, Fowler, let go at age fifty-two, cannot prove a case of age
discrimination based on direct evidence.

Fowler’s case fails on indirect evidence as well. To succeed under the McDonnell Douglas

burden-shifting method of proof, he must first establish a prima facie case of discrimination. Gordon

v. United Airlines, Inc., 246 F.3d 878, 885 (7th Cir. 2001). To establish a prima facie case, Fowler
must show that he: (1) is a member of a protected class; (2) he was qualified for the job or was
meeting Colfax Corp.’s legitimate expectations; (3) he suffered an adverse employment action; and
(4) Colfax Corp. treated substantially younger employees more favorably. See Hoffman v. Primedia
Special Interest Publications, 217 F.3d 522, 524 (7th Cir. 2000).

Neither side disputes that Fowler is in the protected age group, performed his job satisfactorily
and suffered an adverse employment action. However, the fourth prong of the test presents a
roadblock for Fowler. The only workers similarly situated to him in terms of training and salary were

his fellow pressmen. Of the four pressmen who were retained, three were younger than him but none


atl, a li is te ad

a salts de oe

Minutgrder Fora (06197)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Juage Paul E. Plunkett han ‘Assigned Judge
CASE NUMBER 0c P62 DATE 7/19/2002
CASE RALPH FOWLER,et al vs, COLFAX ENVELOPE CORP.
TITLE
[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]
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) im Answer brief to motion due, . Reply to answer brief due :
(4) a Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at :
() Oo Trial[set for/re-set for} on at
(8) im ([Bench/Jury trial] [Hearing] held/continued to at
(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) O General Rule21 [FRCP41(a)(1) OO FRCP41(a)(2).
ao lf [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: there is no genuine
issue of material fact on any of the ADEA claims Fowler asserts against Colfax Envelope, Corp.
Defendant’s motion for summary judgment against Fowler is therefore granted. A genuine issue of
material fact does exist on the claims Cahill asserts against Colfax Corp. Defendant’s motion for
summary judgment against Cahill and Cahill’s cross motion for summary judgmentare, therefore, denied.
Status hearing set for 8/1/02 at 9:30a.m.
ql) soi [For further detail see order attached to the original minute order.]

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Y | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom

deputy’s

initials

TBK

No notices required, advised in open court.

12 By
Or G3

22 War 20

number of notices

MUL 23, 2002

date muited notice

= G3 “Us
Daieitimeteceived in
central Clerk’s Office:

nailing deputy initials



consisting of sending out resumes with no cover letters and making follow-up phone calls, was

reasonable. Therefore, the defendant is not entitled to summary judgment on the issue of damages.”

Cahill’s Cross Motion for Summary Judgment

Cahill has filed a cross motion for summary judgment, claiming that by defendant’s own
admission, the decision to lay off Cahill was predicated on the belief that he would retire soon. The
plaintiff claims this belief was based on the fact that Cahill was turning sixty in June 1999, that most
pressmen retired at age sixty because they could receive full retirement benefits, and therefore the
decision was based directly on Cahill’s age. The defendant counters that Cahill told Adrienne Poole,
Colfax Corp.’s human resources manager, that he would be retiring at the end of the year, and that
Patten confirmed this information with Cahill. (Def.’s Stmt. Facts {ff 21-24.) Patten informed Cahill
that on that basis he would not be considering him for the new web press, and Cahill said that was
okay. (Id.§24.) Defendant further argues that in a reduction in force, an employer may legitimately
choose to lay off workers who are planning to leave, as this makes good business sense. Thorn v.
Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000).

We agree with the defendant. Viewed favorably to Colfax Corp., the record suggests that
Patten believed Cahill would retire shortly. This belief was based upon a variety of factors, most

notably Cahill’s statement to Patten that he would retire. (See Def.’s Stmt. Facts §§ 21-30.) Under

The defendant also argues that Cahill cannot claim compensatory damages under the
ADEA, citing the ruling in Pfeiffer vy. Essex Wire Corp., 682 F.2d 684, 687-88 (7th Cir. 1982).
However, that ruling found that pain and suffering and punitive damages are not available under the
ADEA, but does not speak to general compensatory damage claims. Furthermore, the 7th Circuit
has upheld awards for compensatory damages since the 1982 case. See, ¢.g., Mathis v. Phillips
Chevrolet, Inc., 269 F.3d 771 (7th Cir. 2001); Molnar v. United Technologies Otis Elevator, 37 F.3d
335 (7th Cir. 1994).

11


the latter was a member of a protected class.” Troupe v. May Dept. Stores, Co., 20 F.3d 734, 7: 37 (7th

Cir. 1994). Patten and Clanton’s statements create an inference that Colfax Corp. was motivated to
lay off Cahill because of his age. Cahill was over fifty when he was laid off, and was in fact the
oldest of the pressmen. When Clanton said Colfax Corp. was seeking to train “young guys” for the
new equipment, ajury could reasonably infer that laying off the oldest member of the pressroom staff
was a good start. Thus, plaintiff Cahill survives summary judgment, and the defendant’s motion as

it pertains to Cahill is denied.

Damages

The defendant further argues that should Cahill survive summary judgment, Colfax Corp. is
nonetheless entitled to judgment as a matter of law on the issue of Cahill’s damages. The defendant
claims Cahill did not actively attempt to mitigate his damages, conducting an unenthusiastic job hunt,
and turning down a job offer substantially equivalent to the one he had at Colfax Corp.

However, we agree with the plaintiff that the issue raised by the defendant is best left to ajury,
as it involves questions of reasonableness and credibility. See Smith v. Great Am. Restaurants, Inc.,

969 F.2d 430, 438 (7th Cir. 1992); Matlock v. Barnes, 932 F.2d 658, 667 (7th Cir. 1991); Smith v.

Rowe, 761 F.2d 360, 367 (7th Cir. 1985). The burden is on Colfax Corp. to prove that Cahill did not
fulfill his duty to exercise reasonable diligence in attempting to mitigate his damages through finding
comparable work. Great Am., 969 F.2d at 438. However, the defendant has not presented sufficient
evidence to show that the job Cahill turned down with Bruce Offset was in fact comparable to the

position he held at Colfax Corp. Furthermore, it is for a jury to decide whether Cahill’s job search,

10


As direct evidence of discriminatory intent, he plaintiffs present two alleged comments from
the president and senior vice president of Colfax Corp. which they argue prove the company made
the decision to lay them off on the basis of age.” The first was made by Clanton to union
representative Rick Catalano at a meeting on June 24, 1999, when he said the company wanted to
train “young guys” to run the new equipment. The second was Clanton’s September 22, 1999 remark

”® These comments rise

to Cahill that Patten had said he “ was going to get rid of everyone over fifty.
to the level of direct evidence only if they “relate to the motivation of the decision maker responsible
for the contested decision.”

The defendant argues that Clanton was not a decision maker and therefore his comment is of
no consequence and his remark concerning Patten’s intent is inadmissible.’ The plaintiffs point to
Patten’s testimony calling Clanton his “right-hand man,” “in charge of operations of [the] company,”
as evidence that Clanton was in fact a decision maker. (Pl.’s Ex. C. at 28-29.) However, such a
characterization does not necessarily establish Clanton as being involved in the specific decision to
lay off Fowler and Cahill. More pertinent testimony comes from Clanton’s own admission that he

played a role in the decision to retain Ron Davenport after Wilhelm’s list had been submitted. (Pls.

Ex. D at 42). Patten also says that “Fred [Clanton] and I made [the decision to retain Davenport].”

"Defendant denies both comments were ever made. (Def.’s Resp. Pl.’s Counter Stmt. Mat.
Facts fj 3, 12). However, for the purposes of summary judgment we must examine the facts in the
light most favorable to the non-moving party. Therefore, we will proceed as if both comments were
in fact made, though the matter is disputed.

’Plaintiffs further assert that a comment made by Patten during his deposition, referring to
“one of the young men’ is evidence of discrimination. However, the plaintiff misconstrues the
testimony, which refers to a 23-year-old man, and the Court does not consider the remark
discriminatory.

°No one argues that Patten, as president of the company, was not a decision maker.

7


were over the age of fifty, were laid off. (Id.) Of the four who remained, Wilhelm was fifty years
old and Ron Davenport was fifty-seven. (Id. 53.)* The other two retained pressmen were forty-

eight and forty-nine years old. (Id.)

The Legal Standard

A motion for summary judgment will succeed “if the Pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgement as a matter
of law.” FED. R.Clv.P. 56(c).. Summary, judgment is also proper “against a party who fails to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). At this stage, we do not weigh evidence or determine the truth of the matters asserted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). All facts must be viewed and all
reasonable inferences drawn in the light most favorable to the non-moving party. Hedberg v, Indiana
Bell Tel, Co., 47 F.3d 928, 931 (7th Cir. 1995), However, “if no reasonable jury could find for the

party opposing the motion, it must be granted.” Id,

Discussion
Jurisdiction
‘The defendant asserts that Colfax Corp. is entitled to summary judgment because of a blanket
arbitration provision in the collective bargaining agreement (“Colfax CBA”) covering the plaintiffs’

employment. The defendant maintains that the Colfax CBA clearly and unmistakably waives the

‘See n.1.


In May 1999 Colfax Corp.’s president, Charles Patten, Jr., decided to purchase a new, web-
based press. (Id. ] 14.) This decision necessitated significant layoffs in the pressroom since much
of the work was automated. (Pls.’ Mem. Resp. Mot. Summ. J. at 1.)

In June 1999, the company’s senior vice president, Frederick Clanton, asked Earl “Rick”
Wilhelm, recently chosen to be the web press’s lead pressman, to choose two other pressmen who
would work the new press. (Def.’s Stmt. Facts J 42.)' Clanton told Wilhelm not to choose Cahill
because Cahill would be retiring at the end of the year. (Id.) A week and a half to two weeks later,
Wilhelm submitted his recommendations. (Id.  43.)* After the list was completed, Patten asked
Clanton if Ron Davenport, Wilhelm’s brother-in-law, had been included. (Id. § 45.) His name was
not on the list, but Patten and Clanton added him for vacation relief. (Id.)

Plaintiff contends, and we must accept as true, that at a union meeting on June 24, 1999,
Clanton told a union representative that Colfax Corp. wanted to “train young guys” to run the new
equipment. (Pls.’ Stmt. Facts 12.)

Plaintiff contends, and we must accept as true, that on September 22, 1999, Clanton told
Cahill that Patten said he “was going to get rid of everyone over fifty.” (Pls.’ Stmt. Facts J] 3-4.)

The layoffs were announced to the employees on October 4, 1999, and effectuated on
December 4, 1999. (P1.’s Compl. { 12.) Cahill, aged sixty, who worked for Colfax Corp. for thirty-
three years, and Fowler, aged fifty-two, who was with the company for thirty-two years, were among

those let go. (Def.’s Stmt. Facts  54.)° Eight of the original twelve pressmen, all but two of whom

'Plaintiffs dispute portions of this fact statement, but not the facts cited here.
See n.l.

See n.l.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
RALPH FOWLER and JAMES CAHILL, ) D OCKE TED
) JUL 2 5
Plaintiffs, ) ’ 2002
)
v. ) No. 00 C 7862
) Paul E. Plunkett, Senior Judge
COLFAX ENVELOPE CORP., )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Ralph Fowler and James Cahill have sued Colfax Envelope Corp., (“Colfax Corp.”) for its
alleged violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seg. (“ADEA”).
Colfax Corp. has filed a Federal Rule of Civil Procedure (“Rule”) 56(c) motion for summary
judgment. Cahill, but not Fowler, has filed a cross motion for summary judgment. For the reasons
set forth below, the defendant’s motion for summary judgment is granted with respect to Fowler and

denied with respect to Cahill. Cahill’s cross motion for summary judgment is denied.

Facts

Colfax Corp. is a printing company that manufactures and sells lithographic direct mail and
bank envelopes. (Def.’s Stmt. Facts { 4.) In mid-1999, the company employed more than 120
people. (Jd.) Twenty-six employees worked in the pressroom, operating and maintaining the
presses. (Id.) Twelve of those workers, including Fowler and Cahill, were pressmen, who actually
ran the press. (Id. 17,9.) The remaining pressroom employees were feeders and helpers, who

did not have the same degree of training as the pressmen. (Id.).


Thorn, Colfax Corp. therefore could have made the sound business choice to retain men to run the
new press who would stay with the company for more than a few months. A reasonable jury could
decide that Colfax Corp. did not want to invest in training Cahill for the web press after he told the
president of the company that he was planning to leave.

Furthermore, retirement is not always synonymous with age. See Halloway v. Milwaukee
County, 180 F.3d 820, 825 (7th Cir. 1999) (“[R]equests that an employee retire are not necessarily
a reference to the employee’s age.”) Simply because age played a role — but by no means an
exclusive role — in creating an expectation that Cahill would retire does not mean that age was the key
factor in the decision to lay him off. The plaintiff is therefore not entitled to judgment as a matter of

law and the cross motion for summary judgment is denied.

Conclusion
For the reasons set forth above, there is no genuine issue of material fact on any of the ADEA
claims Fowler asserts against Colfax Envelope, Corp. Defendant’s motion for summary judgment
against Fowler is therefore granted. A genuine issue of material fact does exist on the claims Cahill
asserts against Colfax Corp. Defendant’s motion for summary judgment against Cahill and Cahill’s

cross motion for summary judgment are, therefore, denied.

UNITED STATES SENIOR DISTRICT JUDGE
DATED: Prby 1G, 2002.

ENTER:

12