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December 1, 1988

LOUIS G. BUTTELL, Plaintiff,

Joyce Hens Green, United States District Judge.

The opinion of the court was delivered by: GREEN


 Plaintiff Louis G. Buttell ("Buttell") filed the instant complaint *fn1" on July 9, 1987 alleging violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. ยง 621, and asserting several state law claims as a result of his termination from employment as Director of Public Affairs at the American Podiatric Medical Association ("APMA") in September 1986. Named as defendants in the complaint are the APMA, Norman Klombers ("Klombers"), Executive Director of the APMA, and the members of the Board of Trustees of the APMA ("the Board") *fn2" The matter is presently before the Court on defendants' motion for summary judgment. For the reasons set forth below, defendants' motion is denied.


 Plaintiff was hired by the APMA in July 1967 as the Director of Public Affairs. His duties included responsibility for the total communications programs for the APMA, including public relations, media relations, liaison with State Podiatric Societies, and publications. He supervised a staff of six (6), and reported to the Executive Director. From 1967 until 1986, plaintiff received no formal performance evaluations, although he typically would receive an annual bonus and salary increase at the end of each year.

 In early May, 1986, Klombers, plaintiff's direct supervisor, warned plaintiff that the Board of Trustees was not satisfied with his performance and that he was to be evaluated in three months, at which time Klombers would determine whether to retain plaintiff. At that time, the APMA contracted with Peat, Marwick, an outside consulting agency, to conduct a management review of the APMA staff. The Peat, Marwick task force ultimately filed a report which was critical of plaintiff.

 In September, 1986, plaintiff was fired for "performance related reasons." Plaintiff's Memorandum in Opposition to Motion for Summary Judgment ("Opp."), at 2. He was fifty-nine (59) years of age. He was replaced by a younger employee, Dean Wakefield, who was fifty-six (56) years of age. Id. After his termination, plaintiff requested a review of the termination by the Board of Trustees, pursuant to APMA's policies, as set forth in APMA's employee handbook of personnel policies. The Board denied plaintiff's request for a hearing and instead issued a statement that "the procedures" were followed. Plaintiff asserts he was never afforded a review of the merits of his termination nor was he given an opportunity to present his case to the Board. Complaint, at 7.

 Plaintiff further alleges that beginning in September 1984 Klombers engaged in a pattern of misconduct calculated to have plaintiff fired. Buttell claims that Klombers put him in embarrassing positions by requiring him to perform tasks that he would not likely be able to complete. He contends that Klombers made misrepresentations to the Board of Trustees and the outside consulting firm regarding plaintiff's job performance. He also alleges that Klombers created erroneous records, altered memoranda, and generated inaccurate minutes of executive committee conferences, all in an attempt to discredit plaintiff and ensure that he be terminated. Id. at 3. This "misconduct" was brought to the attention of the Board of Trustees, which nevertheless affirmed Klombers' decision to terminate plaintiff.

 Plaintiff maintains that his termination was discriminatory, based on age, in violation of the ADEA. He also asserts state law claims for breach of contract and breach of the implied covenant of good faith and fair dealing.


 A. Summary Judgment Standard

 Summary judgment is appropriate when there is "no genuine issue as to any material fact." Fed. R. Civ. P. 56. "The inquiry performed is the threshold inquiry of determining whether there is a need for trial -- whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to believed, and all justifiable inferences are to be drawn in his favor." Id. 106 S. Ct. at 2513. At the same time, however, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).

 B. Count I -- Age Discrimination

 Defendants have moved for summary judgment as to Count I on the ground that plaintiff has failed to produce any evidence, direct or circumstantial, necessary to establish a prima facie case of age discrimination. In the alternative, defendants argue that they have met their burden of coming forward with a legitimate, non-discriminatory reason for their decision to terminate plaintiff and plaintiff has failed to present facts showing that this reason was pretextual, i.e., plaintiff has not shown that he was fired because of his age. While the plaintiff's evidence is somewhat weak, the Court concludes that plaintiff has presented genuine issues of material fact sufficient to overcome defendants' motion.

 In cases brought under the ADEA, the allocation of evidentiary burdens is equivalent to those that have been established in Title VII discrimination cases. See Skelton v. Action, 668 F. Supp. 25, 28 (D.D.C. 1987); Cuddy v. Carmen, 246 U.S. App. D.C. 25, 762 F.2d 119, 122 (D.C. Cir. 1985). In termination cases the plaintiff must first present a prima facie case of age discrimination by showing that (1) he belongs to the group protected by the relevant statute (here the group of persons between ages 40 and 70); (2) the plaintiff was qualified for the position in question; (3) the plaintiff was terminated; and (4) a person not of the protected group was selected. See Skelton, 668 F. Supp. at 28; Cuddy, 762 F.2d at 122; Krodel v. Young, 242 U.S. App. D.C. 11, 748 F.2d 701, 706 (D.C. Cir. 1984), cert. denied, 474 U.S. 817, 88 L. Ed. 2d 51, 106 S. Ct. 62 (1985); Coburn v. Pan American World Airways, Inc., 229 U.S. App. D.C. 61, 711 F.2d 339, 342 (D.C. Cir. 1983). Once a plaintiff has accomplished this, the burden then shifts to the defendant to rebut the resulting presumption of discrimination. Skelton, 668 F. Supp. at 28. To do so, a defendant must produce evidence "that plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Id. at 28, quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). If this burden of production is satisfied, the plaintiff must then prove his case "either indirectly by showing that the reason proffered by the defendant was in fact a pretext or directly by showing that it was more likely than not that the defendant was actually motivated by discrimination." Skelton, 668 F. Supp. at 28, quoting Cuddy, 762 F.2d at 123. Therefore, plaintiff ultimately bears the burden of proving that age was a "determining factor" in the termination, and that "but for" the employer's discriminatory motive, he would not have been fired. See Skelton, 668 F. Supp. at 28-29.

 In Skelton, 668 F. Supp. 25, the Court summarized the burden placed on a plaintiff in an age discrimination case in order to defeat a motion for summary judgment:

In an age discrimination case, the Court's teachings mean that, once the defendant has moved for summary judgment by producing evidence that there existed legitimate, nondiscriminatory reasons for the plaintiff's nonselection, the plaintiff must then demonstrate the existence of material facts indicating that the reasons proffered by the defendant are merely pretextual or that the defendant was in fact motivated by a ...

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