Plaintiffs’ overtime hours in 2002 increased significantly compared to overtime hours worked in
2001; (9) From 2001 to 2002, overall sales increased; (10) Between fiscal year 2001, and fiscal
year 2002, machine sales increased; and (1) Machine sales orders between the end of fiscal year
2002 (March 31, 2003) and December 2003 were significant.

By refuting Defendant’s assertions of its financial state at the time of Plaintiffs’ layoff in
December 2002, Plaintiffs are requesting that the Court determine that there is a genuine issue of

material fact concerning whether Defendant needed to lay off any employees, regardless of age,

and that the stated RIF was merely a ruse for unlawful age discrimination. Paluck, 221 F.3d at
1012 (citing Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1197 (7th Cir. 1997).
Therefore, under Plaintiffs’ analysis of Defendant’s financial condition, age could have never
“tipped the balance” in favor of discharge, because, but for unlawful employment
discrimination, no one would have been fired. Therefore, Plaintiffs’ contention of Defendant’s
financial state must be analyzed under the traditional pretext analysis, and Plaintiffs must be able
to show that Morrison’s articulated reason of poor financial condition: (1) had no basis in fact;
(2) did not actually motivate its decision; or (3) was insufficient to motivate its decision.
Grayson, 308 F.3d at 820 (internal citations omitted). “[I]n determining whether an employer’s
proffered reason for an employment action was pretextual, we are not concerned with the
correctness or desirability of reasons afforded for employment decisions, but rather the issue of
whether the employer honestly believes in the reason it offers.” Grayson, 308 F.3d at 820 (citing

Wade v. Lerner New York, Inc., 243 F.3d 319, 323 (7th Cir. 2001)). Based on the evidence

before the Court, Plaintiffs have raised a genuine issue of material fact as to whether Defendant’s

RIF was merely a ruse, and an excuse to get rid of older workers. On their face, many of the

-19-


establish a prima facie case, each Plaintiff must show that he : (1) is in the protected class; (2)
performed according to Morrison’s legitimate job expectations; (3) was discharged; and (4) had a
job that was absorbed, not eliminated.

If Plaintiffs are able to establish a prima facie case of employment discrimination, the
burden then shifts to the employer to provide a legitimate, nondiscriminatory reason for its
decision to terminate the employees. Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir.
2002) (citing Paluck, 221 F.3d at 1009). The burden then shifts back to the Plaintiffs to present
sufficient evidence “to enable a trier of fact to find that the employer's proffered reason is
pretextual.” Id. Ultimately, however, the burden rests with the Plaintiff to “demonstrate that the
employer would not have made the adverse employment decision in question but for his

membership in a protected class.” Cerutti, 349 F.3d at 1061 (citing Patton v. Indianapolis Pub.

Sch. Bd., 276 F.3d 334, 339 (7th Cir. 2002)).

B. Have the Plaintiffs Established a Prima Facie Case of Employment Discrimination?

Steinweg, Thibideau and Guhl have presented sufficient evidence to establish a prima
Jacie case, as it is undisputed that they (1) are in the protected class; (2) performed according to
Morrison’s legitimate expectations; (3) were discharged; and (4) had positions that were
absorbed, not eliminated. However, with Mangrum, the second prong of the prima facie case is
in dispute. Morrison contends that Mangrum’s work record is checkered with numerous write-
ups and notations of his deficiencies. Mangrum counters by stating that he was performing to
Morrison’s legitimate expectations at the time of his lay off, and that Morrison has exaggerated

the nature of any performance issues Mangrum may have had during employment with Morrison.

-13-


the ADEA, Mangrum can still bring a claim against him, as Russell is “substantially younger”

than Mangrum. See Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 893 (7th Cir. 1998) (“[W]e

consider a ten-year difference in ages (between the plaintiff and her replacement) to be
presumptively ‘substantial.’ ” Id.) Of course, when evaluating Morrison’s decision in the face of
abona fide RIF, the Court notes that Defendant was free to use varied criteria to enable it to
retain the workers that would best serve the needs of the company in the face of financial
difficulty. In addition, “the federal anti-discrimination laws do not authorize judges to sit as a
kind of ‘super-personnel department’ weighing the prudence of employment decisions.”
Grayson, 308 F.3d at 820 (citing Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1139 (7th
Cir. 1997)). Particularly, in the context of an RIF, the Court recognizes that the employer must
often make tough decisions in the face of inevitable layoffs, and the Court does not want to
engage in an unfair scrutiny of that process. However, it is also the Court’s role to ensure that
when Morrison made those difficult personnel decisions, age did not “tip the balance” in favor of
discharging older employees. Plaintiff has presented sufficient evidence to raise a genuine issue
of material fact as to whether, in the context of a bona fide RIF, Defendant’s reason for retaining
Russell over Mangrum were pretextual. If Russell did not have any disciplinary issue while
employed with Mangrum, then the Court might reach a different result about the sufficiency of
Mangrum’s evidence. However, because it is undisputed that both Mangrum and Russell had
disciplinary issues, there remains a genuine issue of material fact concerning whether Morrison’s

stated reasons for retaining Russell over Mangrum were pretextual.

-23-


In 2002, Morrison contends that it began to experience financial difficulties, particularly
in the area of custom machinery. Wilson began to evaluate whether Morrison needed to shift its
focus away from custom machinery. Custom machinery yielded a low profit margin, and there
were no custom machinery orders in 2002. Based on these factors, Wilson determined that
custom machinery would no longer be the Jong term focus of the business. Wilson approached
Lois and Joe Hayworth to help him determine which employees would provide Morrison with the
best opportunity to be able to stay in business, based on the particular skill sets they brought to
the company. Morrison contends that in the course of these discussions, Joe Hayworth provided
Nick Wilson and Lois Hayworth with information relating to the skills and work histories of
Morrison’s employees, including the four Plaintiffs. After these discussions, based on the
company’s poor financial condition, the low backlog, and the specific employee skills which
would provide the best opportunity for Morrison to stay in business, in December 2002,
Morrison decided to lay off the four Plaintiffs in this suit: (1) James Mangrum (“Mangrum”), age
58’; (2) Paul Steinweg (‘Steinweg”), age 64; (3) James Guhl (“Guhl”), age 57; and (4) Frank
Thibideau (“Thibideau”), age 59. In addition to the four Plaintiffs, Mangrum laid off: (1)
Jacqueline Guhl, age 57 (the wife of Plaintiff James Guhl); and (2) Robert Buchner (“Buchner”),
age 47. Each Plaintiffs’ employment history at Morrison, in addition to Defendant’s stated

reason for deciding to lay off each Plaintiff, will be addressed in turn.

2All ages reference the employees’ age at the time of discharge.

-4-


actions that Defendant took immediately following the RIF seem counterintuitive in the face of
heavy financial losses, including the fact that Defendant: (1) gave many production employees
raises in 2002 and 2003; (2) hired four new full time employees in the last six months of 2002;
(3) hired five new employees in 2003; (4) made significant purchases of new equipment in 2002;
and (5) continued to increase employees’ overtime hours."

In an attempt to refute Plaintiffs’ contention that the RIF was pretext for age
discrimination, Morrison explains its rationale for some of the financial decisions it made
subsequent to the RIF. Morrison states that though it produced custom machines in 2003, its
decision to produce any given machine was based on individual business decisions relating to
each machine (i.e., three machines had been built before and therefore incurred no design costs
and were more profitable, and one machine was for a large change part customer for whom
Morrison determined it should produce the machine for customer relation purposes). Further,
Defendant contends, it was more cost efficient to pay overtime to the employees who remained
after the layoffs, rather than pay the salaries, health insurance and other benefit costs of the four
Plaintiffs. Notwithstanding Morrison’s proffered reasons for its need for a RIF, Plaintiffs have
presented sufficient evidence to raise a genuine issue of material fact as to whether Morrison’s
RIF was pretextual.

2. In the Face of a Bona Fide RIF, Were Defendant’s Proffered Reasons for.
Choosing Plaintiffs Pretextual?

The second part of the analysis of Defendant’s employment decisions requires the Court

to determine whether, in the face of a bona fide RIF, Plaintiffs can, “show pretext by

demonstrating that the specific reasons given for including [Plaintiffs] in the reduction were

-20-


operation of manual mills and lathes, and other shop equipment. Finally, Thibideau notes that he
has designed certain prototype machines for Morrison.

Morrison contends that it specifically selected James Guhl, age 57, for layoff, because of
the lack of machine assembly work. Morrison also contends that it selected Guhl for layoff
because he lacked the skills sets that other employees who were already doing certain jobs, or
capable of doing those jobs, possessed. In particular, Morrison notes, although Guhl was a
Komo operator, he was third in line to perform that position. Finally, Morrison contends that
Guhl lacked the requisite skills set in the area of timing screws. As with Thibideau, Guhl notes
his extensive employment history with Morrison, and his ability to work as a welder and change
part assembler (including timing screws and stars and guides). In addition, Guhl has performed
shop maintenance, and can also operate a mill and lathe. Guhl notes that John Kurylo, age 48,
who worked in change parts when Guhl was discharged, had been working in change parts for
only about one and a half years, Further, Guhl has known how to operate a Komo machine for at
least eight years, and operated the Komo for three to four years before Robert Panozzo, age 28,
was hired in 1998.

Thibideau and Guhl contend that they trained Marc Buchholz, age 36 (“Buchholz”) to
(unbeknownst to them) assume their duties, In late 2002, Thibideau and Guhl trained Buchholz
in the assembly of timing screw kits and machines. Consequently, in 2003, after Plaintiffs were
laid off, Buchholz worked in the assembly of timing screw kits and stars and guides, and the
Aurora machine project. Additionally, Steve Smit, age 46 (“Smit”), along with Buchholz, also
worked on new machine orders in 2003. Additionally, in 2003, any maintenance work done by

Plaintiffs was absorbed by Bob Jabaay, age 48. Again, Defendants contend that even assuming

-26-



that it ultimately chose to retain Russell over Mangrum for the inspection position because: (1)
Wilson was familiar with Russell’s performance; (2) Russell did not have performance issues
like Mangrum; and (3) Russell had more experience than Mangrum insofar as Russell had more
stockroom experience than Mangrum, and Mangrum never worked in the shipping department.

Mangrum refutes Morrison’s proffered reasons by stating that Morrison’s lack of
significant experience played no role in Morrison’s decision to terminate him, because
Defendants hired Ali Elomar (“Elomar”), age 20, into the stockroom shipping department, who
immediately began to work full-time and overtime in the stockroom through December 2002.
Therefore, Mangrum contends, there was never going to be a position in the stockroom for him,
because by the time Mangrum was laid off, Russell’s stockroom position had been filled by
Elomar. Mangrum also notes that Russell had disciplinary problems as well. In 1995, Russell
received a disciplinary warning in 1995, for failure to follow instructions to train other
employees. Morrison has also criticized Russell for seeming uncooperative, maintaining a
disorganized stockroom, and wasting company resources by spending time away from his work
area while talking to office personnel. Finally, Mangrum notes that although Wilson was
familiar with Mangrum’s work and had worked with him for years, Wilson did not review any
personnel files when making his decision to discharge the Plaintiffs.

As noted, in the context of a RIF, the Court need not find that Mangrum’s proffered
reasons for retaining Russell over Mangrum were a lie, or not worthy of credence or belief. To
survive summary judgment, Mangrum need only show that there is a genuine issue of material
fact concerning whether age “tipped the balance”” in favor of his discharge. As an initial matter,

the Court notes that although Russell, at 46, is over 40 and part of the protected class pursuant to

-22-



C. Are Morrison's Legitimate, Non-Discriminatory Reasons Pretextual?

Because each Plaintiff is able to establish a prima facie case of age discrimination, the
burden now shifts to Morrison to produce a legitimate, nondiscriminatory reason for the
Plaintiffs’ termination. Cerutti, 349 F.3d at 1061 (citing Peele, 288 F.3d at 326). Again,
Morrison states that based on its poor financial condition, it was forced to eliminate positions
from its work force, and after evaluating the skills set of each employee, it determined that
Plaintiffs should be included in the RIF. Now that Morrison has offered a legitimate,
nondiscriminatory reason for why it had to lay off the Plaintiffs, the burden now shifts to the
Plaintiffs to “rebut that explanation by presenting evidence sufficient to enable a trier of fact to
find that the employee’s proffered reason is pretextual [i.e., a lie].” Cerutti, 349 F.3d at 1061
(quoting Peele, 288 F.3d at 326). In the traditional employment discrimination case, to show
pretext, a plaintiff must show that the employer’s articulated reason for the adverse employment
decision: (1) had no basis in fact; (2) did not actually motivate its decision; or (3) was
insufficient to motivate its decision. Grayson v. O’Neill, 308 F.3d 808, 820 (7th Cir. 2002)
(citing Velasco v. Illinois Department of Human Services, 246 F.3d 1010, 1017 (7th Cir. 2001)).
However, in a RIF case, the pretext standard is altered slightly. The Plaintiff need not prove that
the reason proffered by the employer is a lie. Testerman v. EDS Technical Products Corporation,
98 F.3d 297, 303 (7th Cir. 1996) (citing Russel] v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.
1995)); see also Adreani v. First Colonial Bankshores Corp., 154 F.3d 389, 395 (7th Cir. 1998).
Rather, the Plaintiff must establish that “age ‘tipped the balance’ in favor of discharge.”
Testerman, 98 F.3d at 304 (quoting Umpleby v. Potter & Brumfield, Inc., 69 F.3d 209, 213 (7th

Cir. 1995)). Consequently, if “age enters into the calculus to such an extent that the employer

“17-



Robert Buchner into a meeting and informed him that Morrison did not have enough work for
him, and therefore, had to lay him off.

D. Events After December 31, 2002

After the layoffs, Plaintiffs’ work duties were absorbed by other Morrison employees, In
late January 2003, Morrison rehired Buchner, as the Defendant contends that its business needs
for his engineering/drafting capabilities increased. Morrison contends that it rehired Buchner on
a temporary basis, and specifically told him not to stop looking for other employment because
Morrison was not sure that work was going to continue and had no reason to believe the position
would eventually become full-time. Morrison contends that from his rehire through June 2003,
Buchner worked in engineering, but also assisted occasionally (but minimally) with welding
work. Morrison contends that since June 2003, Buchner has worked in engineering, but has also
assisted occasionally (but minimally) with welding work.

Subsequently, in 2003, Morrison hired seven new employees, and five employees
terminated their employment with Morrison. Morrison contends that on March 26, 2004,
Morrison laid off employee Kenneth Jellema, an engineer, age 49, in an effort to bring costs in
line with sales. Additionally, in February 2004, Robert Panozzo (“Panozzo”), age 28.,voluntarily

terminated his employment with Morrison. Morrison has not replaced Panozzo.

6 Prior to Buchner’s 2002 layoff, he worked as an engineer and performed training,
field service and welding work.

-9-



significant in evaluating the discrimination claims. Id, at 984, n.2. (citing Mills v. First Federal
Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 842 (7th Cir. 1996)). While this factor is
noteworthy, it is not dispositive, and again, Plaintiffs have presented sufficient evidence to defeat
summary judgment. Further, the Court in Mills noted that, “Persons of any age are capable of
practicing age discrimination.” Mills, 83 F.3d at 842 (emphasis in original). Therefore, the fact
that the decision maker was older than two of the Plaintiffs will not prevent them from going to
trial. Consequently, because all four Plaintiffs have raised genuine issues of material fact
concerning whether Morrison’s stated reasons for their Jay offs are pretextual, they may proceed

to trial.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment is DENIED.

Enter:

David H. Coar ad
United States District Judge

Dated: August 2, 2004

-29-


long period of time it took for him to enroll in an educational class that could potentially improve
his employment skills. Finally, Morrison considered the communication problems Mangrum had
with Joe Hayworth and others at the company.
2. Paul Steinweg

Steinweg, age 64, began his employment with Morrison in 1992, as a welder. Steinweg
remained in the welder position throughout his employment with Morrison. As a welder,
Steinweg’s employment responsibilities consisted of doing all the necessary welding for
Morrison. In addition to welding, Steinweg assembled machines, timing screw kits, timing
screws, and stars and guides, wired some of Morrison’s machines, and conducted building
maintenance. Occasionally, Steinweg also operated Morrison’s manual mills and lathes. In the
past, Steinweg made service calls to customers when needed. Approximately two to three
months prior to Steinweg’s termination from Morrison, the work available in custom machinery
decreased. Therefore, Steinweg also worked in timing screw kit assembly, and other areas as
needed. Throughout his employment with Morrison, Steinweg reported to Joe Hayworth.

Morrison contends that it laid off Steinweg because there was a lack of welding work.
According to Morrison, Steinweg lacked the necessary skills to transfer to another area of
Morrison’s Production Department. Additionally, Morrison contends, Steinweg did not posses
the necessary skills to run the computer-controlled equipment used to make timing screws,
timing screw kits and change parts. Finally, Morrison contends that the salaries of some of the

remaining jobs were not commensurate with the salary that Steinweg earned in December 2002.

-6-


B, Plaintiffs’ Employment Histories

1, James Mangrum

Mangrum, age 58, was hired by Morrison in 1987, into the position of machine assembly.
While working in machine assembly, Mangrum’s job duties consisted of pulling parts for jobs
and working with the engineering department to ultimately assemble machines according to in-
house blueprints. In 1991 or 1992, Mangrum transferred to the inspection department, While
working for the inspection department, Mangrum’s employment duties consisted of checking the
container handling and fit of timing screws and other container handling parts, including stars
and guides and bottle clamps, to ensure they were made according to the customers’
specifications. Mangrum worked in Morrison’s inspection department until he was terminated
on December 31, 2002. While working in inspection, Mangrum had a succession of supervisors,
which included Andy Kemetz, Lloyd Vermelland, Tom Gora (“Gora”), Joe Hayworth, Lois

Hayworth and Wilson. At the time of his lay off, Mangrum’s supervisor was Lois Hayworth.

Additionally, Mangrum would report to Joe Hayworth indirectly, as Joe Hayworth would often
provide Mangrum with the shipping goals or schedule for a given day or week.

Morrison contends that it laid off Morrison because he produced a low quality of work.
Morrison contends that it also determined that it did not need two employees to perform

inspection work, In addition, Wilson considered the fact that Mangrum was not dependable and

would allow parts that failed to meet inspection criteria pass inspection. Further, Defendant

contends that it considered that Mangrum failed to grow in certain areas of the company, and the

3 The specific incidents that Morrison contends demonstrate Mangrum’s low work
| quality will be discussed in Section III(B)(1) of this Opinion.

a 5-


fires an employee who otherwise would have survived the RIF, the ADEA has been violated.”
Testerman v. EDS Technical Products Corporation, 98 F.3d 297 at 304. Plaintiffs have stated
that both Morrison’s contention that it was in poor financial health, and its assertions that other
employees were more qualified to survive the RIF (assuming, arguendo, that the RIF was bona
fide) , are pretextual. Therefore, the Court will first analyze whether the Plaintiffs have raised a
genuine issue of material fact concerning the legitimacy of Morrison’s need to reduce its
workforce, and secondly, whether Plaintiffs have raised a genuine issue of material fact regarding
Morrison’s contention that other employees were more qualified than the Plaintiffs to survive a
bona fide RIF.
1. Plaintiffs’ idence Concerning Legitimacy of RIF

As previously stated, Morrison contends that in December 2002, the company’s financial
health was poor. Morrison maintains that between fiscal year 2001 (April 1, 2001 through March
31, 2002), and fiscal year 2002 (April 1, 2002 through March 31, 2003), its net income decreased
drastically. Plaintiffs refute Morrison’s contention that it was in poor financial health by offering
the following evidence: (1) Numerous production employees received a pay increase at the time
of his or her 2002 and 2003 reviews; (2) 2003 annual wages of numerous production employees
increased significantly over their 2002 wages; (3) In the last six months of 2002, Morrison hired
four new full time employees to work in the production department; (4) Morrison hired five new
employees in 2003, including three new engineers; (5) Morrison made significant purchases of
new equipment in 2002; (6) Morrison continued to make contributions to the company’s
401K/profit sharing plan, despite the fact that those contributions were entirely discretionary; (7)

The overtime hours available for production employees increased significantly in 2003; (8)

-18-



his employment with Morrison, but he would also perform other job duties as necessary to meet
the production deadlines for custom orders and other products, While working in the welder and
stars and guides assembly positions, Guhl reported to Gora. While running the Komo machine,
Guhl reported to Keith Register, Tony Frye, and finally, Joe Hayworth, who Guhl reported to
until his employment at Morrison ended.

Morrison states that it specifically selected Guhl for lay off because there was a lack of
machine assembly work, and that Guhl lacked the necessary skills that other people who were
already doing certain jobs or capable of doing certain jobs possessed. Specifically, Defendant
notes, although Guhl was a Komo operator, he was third in line to perform that position.
Additionally, Morrison contends, Guhl lacked the requisite skill set in the area of timing screws.

C. The December 31, 2002 Meeting

On December 31, 2002, Lois Hayworth conducted a meeting with Joe Hayworth, the four
Plaintiffs and Jackie Guhl.> Lois Hayworth informed the Plaintiffs and Jackie Guhl that due to
the fact that the level of work was low, and had not picked up in other areas as Morrison thought
it would, Defendant had to lay off the Plaintiffs and Guhl. Lois Hayworth stated that this
decision, which was based on Morrison’s financial state, would last for an indefinite amount of
time, and Morrison was not sure how long it was going to last. Additionally, Mangrum inquired
as to why the individuals in the meeting were chosen for the lay off. Lois Hayworth responded,
“machine area was the lightest in backlog” and that “they had no backlog in.” See Lois

Hayworth Dep. Tr., p. 31. lines 21-24, p. 32, line 1. Later that same day, Lois Hayworth called

> During the course of this meeting, Plaintiff Guhl twice asked Lois Hayworth,
jokingly, “if this was a meeting for old people.” See Guhl Dep. Tr., p. 48, lines 23-24; p.
49, lines 1-5.

-8-


b. Paul Steinweg

Morrison contends that it specifically selected Paul Steinweg, age 64, for layoff because
there was a lack of welding work. Additionally, Morrison contends that Steinweg lacked the
necessary skills to transfer to other Morrison departments. In particular, Morrison contends,
Steinweg did not possess the necessary skills to operate the computer-controlled equipment used
to make timing screws, timing screw kits and change parts.

Steinweg contends that Robert Buchner, age 47, (once Buchner retumed to Morrison in
early 2003), absorbed his duties. Buchner’s first hire date at Morrison was July 8, 2002, as an
hourly engineer.” This was the first time that Steinweg trained any other engineer to do welding.
Additionally, to refute Morrison’s contention that a lack of welding led to Morrison’s decision to
discharge him, Steinweg notes that Buchner’s 2003 performance evaluation states that Buchner
was “VERY helpful in moving into other areas when needed—welding, assembly, stockroom,
etc.” (See Def. Tab 35—Performance/Salary Reviews of Robert Buchner at p. 1749). In addition,
in 2002 and 2003, an outside company performed at least two welding jobs for Morrison.
Finally, to refute Morrison’s contention that Steinweg did not possess the necessary skills to
operate the equipment used to make timing screws, timing screw kits and change parts, Steinweg
notes that in addition to welding, he assembled machines, timing screw kits, timing screws, and

stars and guides, did some wiring of machines, and did building maintenance, and he can also

7 Although Buchner was hired as an hourly employee into an engineering position, it
should be noted that engineers at Morrison are salaried employees, not hourly. When Buchner
returned to Morrrison after his three-week layoff, he returned as an hourly employee.

Buchner eventually became a salaried employee, as of the next paycheck issued after June 11,
2003. Notably, on June 11, 2003, Defendants were served with Plaintiffs’ Complaint in this
case.

-24-


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Ni f Assigned Jud; 7 Sitting J or
—athegistrate Judge David H. Coar than Assigned Judge
CASE NUMBER 03 C 3891 DATE 8/02/2004
CASE James Mangrum et al. vs. Morrison Timing Screw Company
TITLE

[Jn the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) stale briefly the narure
of the motion being presented.]

(1)

MOTION:
Defendant’s Motion for Summary Judgment [Doc. No. 23]
DOCKET ENTRY:
() QO Filed motion of [ use listing in “Motion” box above.] |
(2) a Brief in support of motion due
(3), Oo Auswer brief to motion due__. Reply to answer brief due__.
t (4) oO Ruling/Hearing on setfor at
5) o Status hearing[held/continued to] [set for/re-set for] on setfor_ at
(6) o Pretrial conference[held/continued to] (set for/re-set for] on setfor_ at
mM a Trialfset forlre-bet forlon____at
8) oO [BenclJury trial] [Hearing] held/continued to__—_at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) | O Local Rule 41.1 OFRCP41(a\(1) 0 FRCP41(a)(2).
qo) «= [Other docket entry] For the reasons set forth in the attached memorandum opinion and order,

Defendant’s Motion for Summary Judgment [Doc. No. 23] is DENIED.

Onde

a (For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

X | Docketing to mait notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

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SAE BI pe cot a



teduction-in-force (a “RIF”), the employer permanently eliminates certain Positions from its
workforce. See id. The Seventh Circuit has adopted variations of the traditional prima facie
case, in order “to reflect the reality of the workplace.” Id. (“Because the employer has removed
a position entirely... it makes little sense to require a plaintiff to meet the fourth prong of the
McDonnell Douglas test, in which the plaintiff must demonstrate that the position remained open
or was filled by someone who was not a member of the protected class.” Id.). There are also
variations of the so-called “RIF McDonnell Douglas framework”, in order to reflect the ;
differences that occur subsequent to a RIF. For example, some employers will eliminate the
duties of the discharged employees entirely, while others will have the remaining employees
absorb the duties of the terminated employees.

In this case, the Parties disagree on the appropriate standard Plaintiffs must establish for a
Prima facie case. Plaintiffs believe that for a prima facie case, they must establish that they: (1)
are in the protected class; (2) performed according to their employer’s legitimate job
expectations; (3) were discharged; and (4) had jobs that were absorbed, not eliminated. Paluck y,
Gooding Rubber Co., 221 F.3d 1003, 1012, n.5 (7th Cir. 2000). In contrast, the Defendants
believe the appropriate standard for the prima facie case is that Plaintiffs: (1) belong to a
protected group; (2) were performing according to Morrison’s legitimate expectations; (3)
suffered from an adverse employment action; and (4) similarly situated employees substantially
younger than Plaintiffs were treated more favorably. See Balderston v. Fairbanks Morse Engine
Div. of Coltec Industries, 328 F.3d 309, 321-22 (7th Cir. 2003). Defendants contend that
Plaintiffs proposed standard, which is referred to as the “mini-RIF” standard, is inapplicable to

the present case because that standard is only appropriate when a single employee is discharged

-ll-


Ill, ANALYSIS

A. Proof of Discrimination Under the ADEA

The ADEA prohibits discrimination against individuals forty years and older, Taylor v.
Canteen Corp., 69 F.3d 773, 778 (7th Cir. 1995) (citing 29 U.S.C. § 631(a)), “with respect to
compensation, terms, conditions or privileges of employment.” Taylor., 69 F.3d at 778 (citing 29
U.S.C. § 623(a)). Plaintiffs may prove employment discrimination under the ADEA using either
the direct or indirect method of proof. Cerutti vy. BASF Corporation, 349 F.3d 1055, 1060-61
(7th Cir. 2003) (citing Cianci v. Pettibone Corp., 152 F.3d 723, 727-28 (7th Cir. 1998)). Under
the direct method of proof, Plaintiffs must present evidence that age was a dispositive factor in

their discharge. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993) (citing King

y. General Electric Co., 960 F.2d 617, 621 (7th Cir. 1992)). “[A] plaintiff must establish that he

would not have been treated adversely by his employer ‘but for’ the employer’s motive to

discriminate against him because of his age.” Taylor, 69 F.3d at 779 (internal citations omitted).
If the Plaintiffs cannot prevail under the direct method of proof, they must proceed under

the indirect method, using the McDonnell Douglas framework. Cerutti, 349 F.3d at 1061 (citing

Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)). In traditional employment

discrimination cases, under the McDonnell Douglas framework, in order to make a prima facie
case of employment discrimination, a plaintiff must establish that: (1) he is a member of a
protected class; (2) he reasonably performed to the employer’s expectations; (3) he was subject to
an adverse employment action; and (4) the position remained open. See Michas v. Health Cost
Controls of Illinois, Inc,, 209 F.3d 687, 693 (7th Cir. 2000). However, as stated, Morrison

contends that it laid off the Plaintiffs as part of a need to reduce its workforce. In the course of a

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. Frank Thibideau

Thibideau, age 59, was hired into an assembly position at Morrison in December 1987.
For the first four to five years of Thibideau’s employment with Morrison, his work consisted of
the assembly of stars and guides. Thibideau then moved to the assembly of timing screw kits and
testing relating to timing screw kits. Eventually, Thibideau moved to the assembly and testing
relating to machines. Thibideau also performed building and machine maintenance, as well as
various other projects, including the remodeling of a building, prototypes for screws, and work
with light boxes.* While employed at Morrison, Thibideau’s supervisors included: Andy
Kemetz, Keith Register, Gora, and Joe Hayworth, who supervised Thibideau during his last eight
years of employment with Morrison.

Morrison contends that it terminated Thibideau because there was a lack of machine
assembly work, and he lacked the requisite skill set to move into other areas at the company. In
particular, Morrison states that Thibideau did not possess computer-controlled operated skills or
the experience in making and assembling timing screws that other people had.

4. James Guhl

Guhl, age 57, was hired by Morrison in 1990, into the position of welder. After working
as a welder for approximately two years, Guhl moved to stars and guides assembly. After
working in stars and guides for approximately two years, Guhl began to operate a Komo

machine. According to Guhl, assembly was his primary job responsibility for the last six years of

‘ Thibideau also designed certain prototype machines for Morrison. Thibideau and
Wilson have a patent on a light box that Thibideau worked to design. Additionally, when
Morrison was preparing to move to its present location, Thibideau, practically singlehandedly,
worked to repair and remodel the building, and install some of the electrical wiring, plumbing
and heating systems that were required.

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pretextual.” Paluck, 221 F.3d at 1013 (internal citations omitted). Therefore, in order to analyze

the reasons given for choosing Plaintiffs, the Court will assume, arguendo, that Defendants’ RIF
was bona fide. In this regard, Plaintiffs provide evidence that attempts to cast doubt on the
Defendants’ contention that, because of their experiences, the retained employees gave Morrison
a better chance of recovering from its financial problems that the four Plaintiffs did. In order to
determine whether Plaintiffs have raised a genuine issue of material fact concerning whether
Defendant’s stated reasons for not retaining the Plaintiffs are pretextual, for each Plaintiff, the
Court will address: (1) Defendant’s stated reasons for laying off that Plaintiff; (2) Defendant’s
proffered reasons for retaining the younger employee(s); (3) Plaintiff's evidence that seeks to cast
doubt on the Defendant’s reasons; and (4) whether that Plaintiff has raised a genuine issue of
material fact concerning whether Defendant’s retention decision is pretextual.
a. James Mangrum

Again, Morrison contends that it selected Mangrum for layoff because the quality of his
work was low, and it determined that it did not need two employees to perform inspection work.
Additionally, Morrison contends, in selecting Mangrum of layoff, Wilson considered the fact that
Mangrum was not dependable, and would sometimes allow inferior parts to pass inspection.
Additionally, Morrison states that it considered that Mangrum was not growing in certain areas,
and that it took a long period of time for Mangrum to enroll in an educational class that could
further his growth in the company. Finally, Morrison considered the communication problems
Mangrum had with Joe Hayworth and others.

Mangrum contends that Malcolm Russell (“Russell”), age 46, was his replacement, as he

contends that he trained Russell for several years prior to Mangrum’s layoff. Morrison contends

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that younger, less experienced employees have replaced these two Plaintiffs (which Defendant
contends is an incorrect assumption), again, Morrison felt that the remaining employees had the
requisite skills sets to allow Morrison to return to an optimal financial state, which had nothing to
do with the age of any particular employee. After reviewing all evidence in the light most
favorable to the Plaintiffs, both Thibideau and Guhl have presented sufficient evidence to raise a
genuine issue of material fact conceming whether Defendant’s stated reasons for deciding to lay
off Thibideau and Guhl are pretextual. As with the other Plaintiffs, it is notable that all of the
employees who absorbed Thibideau and Guhl’s duties were substantially younger.
Consequently, Thibideau and Guhl can proceed to trial, in order to allow a trier of fact to
determine whether age “tipped the balance” in favor of their discharge.

D. Additional Arguments Presented by Morrison to Rebut Any Inference of

Discrimination

Finally, Morrison cites two other factors that it feels should rebut any inference of
discrimination. First, Morrison notes that it did retain employees 40 and over subsequent to its
layoff of Plaintiffs: (1) Tom Chismar, 48; (2) Robert Jabaay, 48; (3) Dorothy Kuipers, 41;(4) Lee

Kuipers, 47; (5) John Kurylo, 48; (6) Ubalo Otero, 43 ; (7) Michael Rich, 55; (8) Malcolm

9 The Court notes that at age 48, employees Kurylo and Jabaay are not ten years
younger than Guhl, age 58 (with a birthday of February 27, 1945, Guhl is 9 years and 7
months older than Kurylo (whose birthday is September 27, 1954), and 9 years and 10 months
older than Jabaay (whose birthday is December 17, 1954). However, the Seventh Circuit has
stated, “Ten years is a reasonable threshold, establishing a ‘reasonable’ and ‘significant’
gap...yet the line we draw is not so bright as to exclude cases where the gap is smaller but
evidence nevertheless reveals the employer’s decision to be motivated by the plaintiff's age.”
Hartley, 124 F.3d at 893. In this case, because Kurylo and Jabaay are very close to being ten
years younger than Guhl, and Plaintiffs have presented sufficient evidence to show that age
may have been a significant factor in Morrison’s discharge decisions, Kurylo and Jabaay will
be deemed “substantially younger” than Guhl.

27-


Journeyman machinists, lathe and mill operator, field service, computer drafting, cutting timing
screws, timing screw assembly, timing screw set-up and filming, lathe operator, machine
assembly, kit assembly, Komo operator, blanking and timing screw assembly, estimator, machine
maintenance, changing parts out, janitorial work, machine operator, CNC programmer, changer
part assembly, inspection, timing screw hardware, mill operator, stockroom, timing screw
machine operator, customer inquiries and welding for machine and kit assembly. Production
employees have primary job responsibilities upon which the majority of their time at Morrison is
spent. However, many production employees have the capacity to work in more than one area of
the company, if necessary.

Morrison’s management supervises the production department employees. Three of those
management employees are often responsible for making Morrison’s crucial business decisions.
The first, Nick Wilson (“Wilson”), has served as President of Morrison since May 1, 1971. As
President, Wilson’s primary duties include general management, sales, manufacturing and
service. The second management employee is Lois Hayworth, who has served as Morrison’s
Vice-President since the early 1990's. As Vice-President, Lois Hayworth: (1) oversees
Morrison’s administrative staff; (2) assists with insurance work, bookkeeping and month-end
closings; (3) transfers funds to Morrison’s 401(k) plan; (4) handles Morrison’s payroll; (5)
participates in hiring decisions; (6) evaluates, and occasionally disciplines, employees; and (7)
purchases office equipment. Finally, Joe Hayworth is Morrison’s Production Manager. As
Production Manager, Hayworth: (1) supervises the Production Department employees; (2)
overseas the operations of the production department; (3) directs the projects of the production

employees; and (4) hires, evaluates and disciplines production employees.

3-


The Court will evaluate the evidence to determine whether Mangrum was performing to
Morrison’s legitimate expectations.
1, Was Mangrum Performing to Morrison’s Legitimate Expectations?

As stated, Morrison contends that Mangrum was not performing to its legitimate
expectations. Therefore, the Court must determine whether, construing all facts in the light most
favorable to the Plaintiff, Mangrum was performing according to Morrison’s legitimate
expectations prior to his layoff. Morrison contends that throughout his employment, Mangrum
teceived documented proof of his employment performance deficiencies. Conversely, Mangrum
contends that his work record contained very few performance issues, and that Morrison has
exaggerated the significance of those documents in order to justify Mangrum’s termination.
Mangrum notes when he was laid off, he was not told that his termination had anything to do
with performance deficiencies, and that it was only after he filed a charge with the EEOC that his
performance became an issue.

It is undisputed that the following incidents occurred during Mangrum’s employment
with Morrison: (1) Tom Gora wrote a memo to Lois Hayworth noting that Mangrum noted that
he checked a discharge pitch when in fact, he did not; (2) Mangrum admitted that Wilson told
him he believed the numbers Mangrum had written down differed from the actual measurements
of a Morrison product and appeared to be copied from a data sheet; (3) In June 1998, Lois
Hayworth issued a written warning to Mangrum, because he failed to perform the mandatory
function of logging in a verification with respect to inspection tools; (4) On January 22, 1999,
Gora told Mangrum that Gora wanted to personally double-inspect the PDC timing screws

produced by Mangrum prior to shipping; (5) On July 11, 2000 Joe Hayworth wrote up Mangrum

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“Dependability and Attendance” for the years 1999 through 2001; (4) Mangrum continuously
received raises from Morrison; and (5) Mangrum’s 2001 evaluation stated: “[Mangrum} is
extremely dependable, being to work on-time. Will stay as required. For those things that must
happen, you can depend on [Mangrum].” (See PI. Tab 23—Performance/Salary Reviews of James
Mangrum, p. 20.).

Undoubtedly, the evidence shows from at least 1998 until his layoff in 2002, Mangrum
made mistakes during his employment with Morrison. However, for purposes of this summary
judgment motion, when evaluating whether Mangrum met Morrison’s legitimate expectations,
the crucial time of scrutiny is that period of employment immediately prior to his termination.
Peele, 288 F.3d at 329 (internal citations omitted). As noted, in his 2001 evaluation, the last
formal evaluation on record prior to his lay off, Morrison stated, “[Mangrum] is extremely
dependable, being to work on-time. Will stay as required. For those things that must happen,
you can depend on [Mangrum].” There is only one adverse notation in Mangrum’s employment
file in the year prior to his layoff. In 2002, Gora talked with Mangrum about the importance of
filling out quality reports completely. While this fact is noteworthy, it is not sufficient to rebut
the record evidence that shows that in his last year of employment with Morrison, the company’s
view of Plaintiff was favorable. As such, the record before the Court indicates that prior to his
lay off, Morrison had a positive view of Mangrum. Consequently, the evidence shows that at the
time of his lay off, Mangrum was performing to Morrison’s legitimate expectations. Therefore,

all four Plaintiffs: have established a prima facie case of age discrimination,

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supported by relevant, admissible evidence. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d
560, 562 (7th Cir. 1996).

It is the burden of the party moving for summary judgment to demonstrate the absence of
genuine issues of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 931 (7th Cir. 1995). If the moving party

meets this burden, the non-moving party must set forth specific facts that demonstrate the
existence of a genuine triable issue. Rule 56(e); Celotex, 477 U.S. at 324. To successfully
oppose the motion for summary judgment, the non-moving party cannot rest on the pleadings
alone, but instead must designate specific facts in affidavits, depositions, answers to
interrogatories or admissions that establish that a genuine triable issue exists, Selan v. Kiley, 969
F.2d 560, 564 (7th Cir. 1992). A mere scintilla of evidence in opposition to a motion for

summary judgment is insufficient. Anderson, 477 U.S. at 252.

IL. FACTS’

A. Company Overview

Defendant Morrison Timing Screw Company (“Defendant” or “Morrison”) is an Illinois
corporation engaged in the business of designing and manufacturing change parts, timing screw
kits, and custom machinery, which are all used in conjunction with a packaging production line.
The employees of Morrison’s production department are assigned job duties based on their skill

sets and experiences. The various duties within Morrison’s Production Department include

' Unless otherwise noted, the following undisputed facts are taken from the Parties’
Local Rule 56.1 materials.

2.


operate Mortison’s manual mills and lathes. Finally, Steinweg notes that in the past, he made
service calls to customers when needed.

Steinweg has raised a genuine issue of material fact as to whether, in the face of a bona
fide RIF, Morrison’s stated reasons for discharging Steinweg were pretextual. Particularly
significant to the Court’s analysis is that in 2003, Morrison rehired Buchner (who, although in
the protected class, is “substantially younger” than Steinweg), and when he retuned, he did
welding work for Morrison. Additionally, Buchner trained Steinweg for that welding work in
2002, less than six months before Morrison’s December 2002 layoffs. As such, it remains that
there is a genuine issue of material fact whether age unlawfully “tipped the balance” in favor of
Steinweg’s discharge.

b. Frank Thibideau and James Guhl®

Morrison contends that it specifically selected Frank Thibideau, age 59, for layoff
because there was a lack of machine assembly work. Morrison also contends that Thibideau
lacked the necessary skills to move into other areas of the company. In particular, Morrison
maintains that Thibideau lacked computer-controlled equipment operating skills and the
experience in making and assembling timing screws that other people had. To refute Morrison’s
assertions, Thibideau notes that Morrison did allow him to operate its manual machines, and
notes his years of experience and ability to work in a variety of areas of the company, including

working in the assembly of machines, timing screw kits and stars and guides/change parts, the

5 Because Thibideau and Guhl contend that they trained several of the same individuals
who ultimately became their replacements, the analysis of their pretext claim will be addressed
simultaneously.

=25-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION BOCKETES

JAMES MANGRUM, PAUL STEINWEG, AUG ~ 3 2004

JAMES GUHL, and FRANK THIBIDEAU
Plaintiffs,

No. 03 C 3891

v.

HONORABLE DAVID H. COAR

MORRISON TIMING SCREW COMPANY,

weweweeeee

Defendant.

MEMORANDUM OPINION AND ORDER

Before this Court is Defendant Morrison Timing Screw Company’s motion for summary
judgment on Plaintiffs’ Complaint, which alleges unlawful employment discrimination in
violation of 29 U.S.C. § 623 of the Age Discrimination in Employment Act (“ADEA”). For the

reasons set forth below, Defendant’s motion for summary judgment is DENIED

I. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R, Civ. P, 56. All inferences must be drawn in the light most favorable to the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Thus, the Court

accepts the nonmoving party’s version of any disputed facts; however, those facts must be

ote

U9


Russell, 46; (9) Mike Saunders, 46; (10) Steve Smit, 46; and (11) William Tatum, 51.
Defendants note that certain cases have held that there is no inference of discrimination where,
even though all employees discharged in the RIF were over 40 years old, the employer retained
several employees who were over 40 years old. See Jackson v. E.J. Brach Corp., 176 F.3d 971,
985-86 (7th Cir. 1999). While the Court in Jackson did determine that the fact that employees
within the protected group remained employed with the corporation was a factor in rebutting any
inference of discrimination, several of the factual circumstance of that case are distinguishable
from the Plaintiffs’ case. First, in Jackson, the employee who replaced the Plaintiff was older
than him. Id. In this case, all of the employees who absorbed the Plaintiffs’ duties were
substantially younger. Second, in Jackson, the Defendants terminated all of the salaried
employees of a particular group, and it just so happened that all salaried employees were over 40.
Id. In this case, there is no similar thread in Plaintiffs’ former employment positions at Morrison
that would rebut Plaintiffs’ evidence demonstrating pretext. It should also be noted that although
there were other employees who were over 40 remaining at Morrison, Plaintiffs were the four
oldest working employees. ‘° Therefore, because of the distinctive facts of this case, the fact that
older employees remained at Morrison does not preclude Plaintiffs from proceeding to trial.
Secondly, Defendants note that Nick Wilson, President and ultimate decision maker at
Morrison, was 58 years old when he decided to lay off the Plaintiffs. Defendant notes that in

Jackson, the Court found that the fact that the decision maker was older than the plaintiff was

10 Although Morrison has listed John Williams as an employee, Williams became ill in
May 2002 and never returned to work. Consequently, John Williams was not performing any
work duties at Morrison at December 2002, and will not be considered a “working” employee
for purposes of this summary judgment motion.

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and his position is not filled, but his duties are assumed by other employees. Michas 209 F.3d at
693; see also Bellaver v. Quanex Corp., 200 F.3d 485, 495 (7th Cir. 2000). However,
Defendants do not dispute that Plaintiffs’ duties were absorbed by the remaining Morrison
employees. See Def. Local Rule 56.1(a) Statement of Material Facts, ] 174. Additionally,
Plaintiffs have presented adequate evidence to show that their duties, were not completely
eliminated, but were absorbed by other Morrison employees. It is undisputed that in December
2002, Morrison continued to make machines, Morrison accepted new machine orders in 2003,
and the Plaintiffs trained other employees to assemble machines as late as December 2002.
Further, in 2002, Morrison had an outside company perform some welding work, and in 2003,
Morrison had an employee from an outside company perform welding work. In addition, in late
2002, Thibideau and Guhl trained Buchholz in the assembly of timing screw kits and machine,
and in 2003, after Plaintiffs were terminated, Buchholz worked in the assembly of timing screw
kits and stars and guides, and the Aurora machine project. Finally, it is undisputed that in 2003,
employees Buchholz, Mike Saunders, Steve Smit, Armando Garza, John Kurylo and Nick
Hernandez, as well as several non-production employees, assumed Plaintiffs’ assembly duties.
The Seventh Circuit has held that when the discharged employee’s duties were absorbed by other

employees, the “similarly situated” prong of the RIF test is inappropriate. Paluck, 221 F.3d at

1012, n.5. The Court in Paluck noted that, “For purposes of deciding the proper prima facie case

Tequirements to apply, our inquiry is dependent not on the number of employees terminated, but
‘on whether [the employer] still needed [the employees’] job responsibilities to be performed.’ “

Id. (citing Michas, 209 F.3d at 694), Therefore, because the Plaintiffs have presented adequate

evidence to demonstrate that their employment duties were absorbed, rather than eliminated, to

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because Mangrum failed to write a requisite quality report earlier in the month; (6) On July 24,
2000, Gora wrote a note to Lois Hayworth (and copied Mangrum’s file), documenting
Mangrum’s need to be more complete in filling out quality reports; (7) On J uly 31, 2000, Gora
wrote a note to Lois Hayworth (copying Mangrum’s file), regarding several parts which
Mangrum had inspected and approved that were manufactured incorrectly; (8) On August 24,
2000, Gora wrote a note to Lois Hayworth (copying Mangrum’s file), regarding documenting any
fixtures that are used to inspect MFG parts; (9) In September 2000, Morrison documented the
need for Mangrum to ask for help in inspecting products in the event he had a large volume being
shipped; (10) Mangrum’s November 2000 performance review states Gora’s concern that
Mangrum was making an increasing number of mistakes, and passing an increasing number of
incomplete parts through assembly, and indicated a desire for Mangrum to improve his
communication with Joe Hayworth to improve these issues; (11) In January 2001, Gora
documented the need for Mangrum to inform Gora or Joe Hayworth if Mangrum was going to
leave before his scheduled quit time, and that also Joe Hayworth felt that Mangrmum needed to
provide more updates to him; and (12) In July 2002, Gora talked with Mangrum about the
importance of filling out quality reports completely.

To refute Morrison’s contention that he was not performing to the company’s legitimate
expectations, Mangrum presents the following undisputed evidence: (1) Morrison’s 2001
performance review states that Morrison “did a good job of inspecting with very few errors.”
(See Pl. Tab 23—Performance/Salary Reviews of James Mangrum, p. 20); (2) Mangrum
completed a 3 hour college course in “Total Quality Management” in the spring of 2001, in

which he received a grade of “A.”; (3) Morrison received the highest possible rating under

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