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SMITH v. CHAMBER OF COMMER. OF THE UNITED STATES

September 25, 1986

DOUGLAS P. SMITH, Plaintiff,
v.
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: HARRIS

 This matter is before the Court on defendant's motion for summary judgment on plaintiff's claim that his termination violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. ยงยง 621 et seq., and on plaintiff's claims of breach of contract and breach of an implied covenant of good faith and fair dealing. Upon careful consideration of the pleadings, exhibits, and the entire record, the Court concludes that defendant's motion for summary judgment must be granted in its entirety.

 The plaintiff, Douglas P. Smith, was hired by the Chamber of Commerce of the United States of America (Chamber) in 1965. Between then and the time he was discharged in January 1983, plaintiff held seven different positions. At the time of his termination, plaintiff held the position of Associate/Assistant Director of Special Publications, a department within the Chamber's Media Relations Division. *fn1" According to defendant, plaintiff's tenure in his last position was marked by a deterioration of his performance. Defendant asserts that its dissatisfaction with plaintiff's performance, plus economic difficulties experienced by the Chamber in this time period necessitating personnel lay-offs, caused the termination. Plaintiff was 53 at the time of his discharge. A younger hire was made in the Special Publications Department after plaintiff's departure.

 Plaintiff alleges in this action that defendant terminated him in violation of the ADEA, and that the termination was a breach of contract and a breach of an implied covenant of good faith and fair dealing. Defendant has moved for summary judgment on all claims.

 Discussion

 Plaintiff's first cause of action is brought under the ADEA. Defendant has moved for summary judgment on the grounds that first, plaintiff fails to establish a prima facie case of age discrimination, and second, even if plaintiff has established a prima facie case, defendant has articulated legitimate, non-discriminatory reasons for the termination and plaintiff has not demonstrated facts sufficient to infer pretext.

 The United States Court of Appeals for the District of Columbia Circuit has stated that in order to present a prima facie case of age discrimination under the ADEA, a plaintiff must demonstrate facts sufficient to create a reasonable inference that age discrimination was a "determining factor" in the employment decision. Cuddy v. Carmen, 224 U.S. App. D.C. 287, 694 F.2d 853, 856-57 (D.C. Cir. 1982), on remand 580 F. Supp. 788 (D.D.C. 1984), aff'd, 246 U.S. App. D.C. 25, 762 F.2d 119, cert. denied, 474 U.S. 1034, 106 S. Ct. 597, 88 L. Ed. 2d 576 (1985). See also Coburn v. Pan American World Airways, Inc., 229 U.S. App. D.C. 61, 711 F.2d 339, 342 (D.C. Cir.), cert. denied, 464 U.S. 994, 78 L. Ed. 2d 683, 104 S. Ct. 488 (1983). An inference of discrimination is created if the plaintiff shows that he (1) belongs to the statutorily protected age group (40-70); (2) was qualified for the position; (3) was terminated; and (4) was disadvantaged in favor of a younger person. Coburn, 711 F.2d at 342; Snyder v. Washington Hospital Center, 36 F.E.P. 445, 446 (D.D.C. 1984). In Coburn, a reduction-in-force case, the court explained that direct evidence of discrimination is not required to prove a prima facie case. 711 F.2d at 343 (citing Cuddy, 694 F.2d at 856-57). The court stated: "We believe the exigencies of a reduction-in-force can best be analyzed at the stage where the employer puts on evidence of a nondiscriminatory reason for the firing. In this manner the employee always retains the burden of proving discrimination while the employer's situation is analyzed on a case-by-case basis." Id. at 343.

 Once a prima facie case has been established, the employer bears a minimal burden of "producing evidence" tending to show that the plaintiff was terminated for a legitimate nondiscriminatory reason. Although this evidence must be legally sufficient to justify a judgment for the defendant, it is merely one of production, not one of persuasion. Cuddy, 762 F.2d at 122-23. If the employer does so, and if his evidence is credible, the plaintiff must show by a preponderance of the evidence that the employer's asserted legitimate reason is a "pretext" for discrimination. Krodel v. Young, 242 U.S. App. D.C. 11, 748 F.2d 701, 705 (D.C. Cir. 1984), cert. denied, 474 U.S. 817, 106 S. Ct. 62, 88 L. Ed. 2d 51 (1985); Coburn, 711 F.2d at 342; Cuddy, 694 F.2d at 857. In an ADEA case, the plaintiff's ultimate burden is to prove that age was "a determining factor" in the challenged employment decision. Krodel, 748 F.2d at 706; Coburn, 711 F.2d at 342; Cuddy, 694 F.2d at 857-58. The plaintiff must prove that age made a difference in the employer's decision in the sense that "but for" the discriminatory motive, the employee would have been retained. See Krodel, 748 F.2d at 706.

 In considering a summary judgment motion such as the one presented here, the Court will only grant summary judgment where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In an ADEA claim, the Court's task is to ascertain at each step of the test outlined above whether any issue of material fact emerges authentically, and, if not, whether the case calls for judgment as a matter of law. Abraham v. Graphic Arts International Union, 212 U.S. App. D.C. 412, 660 F.2d 811, 815 (D.C. Cir. 1981); Everett v. Communications Satellite Corp., 36 F.E.P. 793, 796 (D.D.C. 1983). The Court finds that summary judgment is appropriate in this case as plaintiff has not met his burden of proof for a prima facie case in either showing that he was qualified for the position or that he was replaced by a younger person. The Court also finds that even if plaintiff could establish a prima facie case of age discrimination, summary judgment is still appropriate as defendant has articulated a legitimate non-discriminatory reason for plaintiff's termination and plaintiff has not shown by a preponderance of the evidence that such reason was pretextual and that age was the determining factor in his employer's decision. *fn2"

 In order to support the prima facie case requirement that plaintiff is "qualified," plaintiff must show that he met his employer's legitimate expectations. See Everett, 33 F.E.P. at 794 (citing Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 290 (8th Cir. 1982), cert. denied, 459 U.S. 1205, 75 L. Ed. 2d 438, 103 S. Ct. 1194 (1983). Defendant provided uncontroverted evidence that shows that plaintiff was not "qualified," in that plaintiff was not meeting his employer's expectations and that defendant was dissatisfied with plaintiff's performance. The Seventh Circuit in Huhn v. Koehring Co., 718 F.2d 239 (7th Cir. 1983), emphasized the need for a plaintiff to show that he was adequately performing his duties to his employer's satisfaction. The Huhn court affirmed a grant of summary judgment for the defendant employer where the employee had been terminated because of his employer's dissatisfaction with his performance. The Huhn court, quoting the trial court, stated: "The issue here is not whether [plaintiff] was performing satisfactorily. The company did not think he was. So long as age was not the basis for the company's decision . . . the company can make a decision to terminate, even if the decision is unwise." Id. at 243.

 Plaintiff cites his long history of employment with the Chamber. However, whatever success plaintiff enjoyed in his early and middle years with the Chamber is not relevant to a determination that defendant was unsatisfied with his performance in the time period prior to his termination. Plaintiff states that he was given two "competent" evaluations in his last year of employment. When the circumstances surrounding these evaluations are examined, it is clear that they do not provide support for the "qualified" requirement. The first proposed evaluation and salary increase, made in early 1981 was never finalized. The Chamber delayed the evaluation for a six-month period to evaluate plaintiff in his new position. Defendant Exh. A. A confidential memorandum written by Mitler, Director of Media Relations, indicated the Chamber's intention to give plaintiff a provisional rating for the early 1981 evaluation, which was being delayed so that that rating would not appear in plaintiff's jacket. Defendant Exh. B. In July 1981, plaintiff did receive a competent evaluation, but the justification section stated that "there should be a continued period of probation" and that in view of the fact that plaintiff had not received a raise in salary for almost two years, a minimal raise was recommended. Defendant Exh. C. Defendant has submitted testimony that plaintiff's subsequent job performance deteriorated, see Mitler Tr. at 114; Staufer Tr. at 183, as well as contemporaneous written documents detailing inadequacies in performance. Defendant Exhs. E & F.

 Plaintiff challenges the accuracy of the criticisms of his work performance. However, plaintiff's perception of himself, and of his work performance, is not relevant. It is the perception of the decisionmaker which is relevant. See Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980); McDaniel v. Mead Corp., 622 F. Supp. 351, 360 (W.D. Va. 1985); Rosengarten v. J. C. Penney Co., 605 F. Supp. 154, 157 (E.D.N.Y. 1985). Plaintiff does not present a material issue of fact on the question of the quality of his work by merely challenging the judgment of his superiors. Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1223 (7th Cir. 1980), cert. denied, 450 U.S. 959, 67 L. Ed. 2d 383, 101 S. Ct. 1418 (1981). Plaintiff also contends that all but one of defendant's witnesses were unfamiliar with plaintiff's work. However, plaintiff's employers were entitled to rely on reports of plaintiff's performance given by his immediate supervisor, Stauffer, and by others familiar with his work. See Snyder, 36 F.E.P. at 447. Plaintiff also relies on two letters of recommendation written by Stauffer after his termination blaming the termination on budgetary constraints. Plaintiff Exhs. 4 & 5. The Court, having examined these letters, finds they were written for the purpose of helping plaintiff obtain new employment and that they are deliberately vague as to plaintiff's performance in the time period in question. Lastly, the fact that plaintiff submits he was unaware of his probationary status does not change the Court's conclusion that plaintiff was not "qualified." See Pace v. Southern Railway System, 701 F.2d 1383, 1391 n.8 (11th Cir.), cert. denied, 464 U.S. 1018, 78 L. Ed. 2d 724, 104 S. Ct. 549 (1983) ("Taking as true that appellant was unaware . . . of the dissatisfaction with his performance, . . . a basis of poor management and decisionmaking may be made out, but certainly no basis for an inference of discrimination").

 Plaintiff also has not shown that he was replaced by a younger individual. Plaintiff alleges that he has met this requirement of a prima facie case because, after his termination, the Chamber hired Terri Shonerd, a 27-year-old woman, to fill a position of assistant director in his department. *fn3" After a close review of the pleadings, exhibits, affidavits, and depositions filed, the Court concludes that Shonerd did not fill plaintiff's position; rather, Shonerd filled a position left vacant by the resignation of another member of the department, which was originally a paraprofessional position upgraded to a management-level position. The request for an upgrade occurred in April ...


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