Petition for Writ of Certiorari — Bennington v. Caterpillar, Inc.

011753 mar 26 2002

No. OPPIGE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES BENNINGTON,

Petitioner,

v.

CATERPILLAR, INCORPORATED, a corporation doing

business in the State of Illinois,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

PETITION FOR A WRIT OF

CERTIORARI

r William M. Anderson I'V

Anderson Law Offices

625 South Main Street

Creve Coeur, Illinois 61610

Telephone: (309) 694-6250

Attorney of Record for Petitioner

Questions Presented

Petitioner was subjected to an improper transfer, causing

severe public humiliation and intolerable working conditions,

creating a hostile work environment and resulted m a

constructive discharge of petitioner im violation of the Age

Discrimination in Employment Act. The district court found that

petitioner was treated less favorably than other employees,

however, because the employee that replaced petitioner was not

more than ten years younger than petitioner, the court held that he

was not substantially younger than petitioner.

The district court also held that petitioner failed to

establish a claim for the imtentional infliction of emotional

distress. The district court found that petitioner presented enough

evidence to show that he had suffered a materially adverse

employment action, which is the basis for his claim for the

intentional infliction of emotional distress and respondent never

denied that their conduct was intended to cause distress.

It should also be noted that the U.S. Supreme Court is

currently reviewing a case to determine whether older employees

have the same legal clout as minorities in discrimmation claims,

which may also affect petitioner’s claim.

The questions presented are:

3 Whether the court erred in requiring a 10 year age

difference to prove a prima facie case of age discrimimation and

whether petitioner’s claims of wrongful transfer, hostile work

environment and constructive discharge, based on age

discrimination, were sufficient to withstand respondent’s motion

for summary judgment;

2. Whether petitioner’s common law claim for

intentional infliction of emotional distress was sufficient to

withstand respondent’s motion for summary judgment; and

3. Whether the district court erred m refusing to

reopen discovery.

TABLE OF CONTENTS

FN a | i

SE I srcisha ashictciiipiccristtentctitiiiinslatniaclascageniie ii

BF A TIT iti

fr a aS DOE Pe TRE l

Pra rr I i ee ]

Statutory Provisions Involved ..............ccccccceccocessesecceseoceececeee. l

ite cg cea IN NCTE OSE ET ae Oe 2

Reasons for Granting the Writ .0.........0.ccccscscssesecesecsececesceceees 5

I. ‘i Discrimination Claim .............cccccccsceseesseceseeees 5

II. Intentional Infliction of

INP MIIIII csncsiciiemtevsnesnniassiaudecsnetsantion 7

III. Refusal to Reopen Discovery ............cccccccceceeeees 20

RI iisatchacslecsaitasitniaiilleiat aise snannabssalcaretsuasscaninctsiclics 25

TABLE OF CITED AUTHORITIES

TOUR BOIS oeccscccorieinnsininnameietene. 1

0 CIE COE o.icccccscinsinisiamadianiaceiine tee.

Federal Rule 30.1 of the local rules

of the United States District Court for

the Central District of Tiim0is .................ccsecscscsssssscsees 1, 22-24

Brown v. City of Aurora, 942 F.Supp.

375, FR CRED. Be. Fe cinstarnasccesecsciciiattnies iz

Campbell v. Fasco Indus., Inc., 861 F.Supp.

1385, 1390 & 1.5 (N.D.IIL 1994) o...csecccccseecsseessseee 6,7

C.f. Christensen v. Equitable Li q

Society of United States, 757 F.2d 340,

363 (PC, CE entice ies 13

Cole v. City of Milwaukee, Wisconsin,

S56 UE, OGRE Cree encanta 7

Doe v. R.R. Donnelly & Sons, Co.,

42 F.3d 439, 443 n.3 (7® Cir. 1994) occcccccccccccseeseeees 14

Hartley v. Wisconsin Bell, Inc.,

1364 F.3e GOT, BES 7" Coe. FRIED sciciscenianetnenncenns 7

Harris v. Forklift Sys., Inc.

S30 U.S. FT, 23 CESBS) ....0nsvinccsanmnniserssenenseniantannnenns 14

Holder v. Ivanjack, 39 F.Supp.2d 964,

969 CCD. Eh. TSP8? sccciniiamcemmeanaaae 17, 18

y 137 F.3d 1003,

1007 (7® Cir. 1998) .....-nssscereeereerensnsnencenensensnenenensnees 11

v

411 U.S.792 (1973) ..-ceescereceesseerseeersreenrsennsnacnnesnnesnners 6

¥, 126 IlL2d 78,

533 N.E.2d 806, 809 (1988) ....-----eeeereereerenensrneneeees 18

Vv B v. Vi

477 U.S. 57, 65 (1986) ...-----ecceerseersseeserseresnnenensnnrens 14

Vv.

Dist. No. 4, 983 F.Supp. 1201, 1208,

(C.D. TIL. 1997) ...-secseoecseeseneenensenenennenssnsensensnssncnnseres 1]

nV. '

901 F.Supp. 274, 278 (N.D. Ill 1995) ....cccoceeeecseseees 17

Perdomo v. Browner, 67 F.3d 140,

145 (7 Cir. 1995) ..sssosescesnesesnssssssneesennnsssssnnessnnnesscs 11

Pitasi v. Gartner Group, 184 F.3d 709,

T14 (T™ Cir. 1999) -sssecssesscnsessssnnsensensnrenees 7, 10, 12, 16

v. ing, Inc.

217 F.3d 467, 468 (T™ Cir. 2000) ....-.-sececeeeesereererenenens 6

v. i j Materials, Inc.

55 F.Supp.2d 899, 903 (C.D. IIL. 1999) ...-----eeeeeeeeee 17

Robin v. Espo Eng’g Corp., 200 F.3d 1081,

1OBB-B9 (7 Cir. 2000) ...--osecssesesssessennesersneessnssesnnsenen 6

Rodgers v. Western-Southern Life Ins. Co..

VERT” Fly al SE, - permenrmnne 14

Surowitz v. Hilton Hotels Corp.,

I 20

Venters v. City of Delphi, 123 F.3d 956,

Ran RT RE aementr tie Boomers 14

Wilson v. Chrysler Corp..

172 F.3d 500, 510 (7* Cir. 1999) .......cececsccseeecessseeees 15

Zamudio v. Patla, 956 F.Supp. 803,

I a 11

Zorn v. Helene Curtis, Inc., 903 F.Supp.

es I ON NIE cabinnisennitcicderiicineesseniniin 14

Reet rw eat ee cel,

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals

for the Seventh Circuit in this case.

OPINIONS BELOW

The district court's opinion (per Chief Judge Joe B.

McDade) granting respondent's summary judgment motion

(Appendix A-10 - A-26 (Pet. App.") ) is not published. The

district court's subsequent opinion reaffirming that holding and

denying petitioner's motion for reconsideration (Pet. App. A-54

- A-57) is not published. The court of appeals’ opinion (per .

Chief Judge Flaum, joined by Circuit Judge Cudahy and

Circuit Judge Manion) affirming (Pet. App. A-1 - A-9) is

published at 275 F.3d 654.

STATEMENT OF JURISDICTION

The court of appeals entered its opinion and order on

December 28, 2001. No petition for rehearing was filed.

Petitioner invokes this Court's jurisdiction under 28 U.S.C.

§1254(1).

STATUTORY PROVISIONS INVOLVED

The provisions of 29 U.S.C. §623 and 29 U.S.C. §631

relevant to this petition are reprinted in the Appendix at A-27 -

A-33. Federal Rule 30.1 of the local rules of the United States

District Court for the Central District of Illinois relevant to this

petition is reprinted in the Appendix at A-33a.

STATEMENT OF THE CASE

Petitioner, James Bennington, date of birth, August 7,

1944, was an employee of Caterpillar, Inc. from the time of his

discharge from the United States Army im 1965 until

approximately May 6, 1998. James Bennington started out m

the apprenticeship program in 1965 and received a steady

stream of promotions, advancements and increasing

management and supervisory duties during his years at

Caterpillar, Inc. until approximately February of 1998. All of

James Bennington's annual performance evaluations, including

the very last one he received at Caterpillar, were good to

excellent in nature. James Bennington never received anything

approaching an unfavorable employment performance

evaluation until the unwarranted negative alteration of his 1997

evaluation in December, 1997 or January, 1998, by Paul

Wroblewski, a senior management employee who had little or

no personal knowledge of Bennington’s work over 1997.

In late 1997, Caterpillar determined that they desired to

eliminate fifty managerial positions. Subsequently, James

Bennington and several other elderly supervisory employees

were placed in an empty building, given no official job duties,

and were referred to as waste management. In addition,

performance reviews were altered in some cases before and in

at least one case after the performance reviews had already

been through the "sign line” and placed in the employees’

personnel histories changing their mitial fivorable evaluations

to extremely unfavorable performance evaluations, without

good cause. This changing of the performance evaluations

effectively eliminated any potential for these employees of

obtaining a different good job at Caterpillar and, more

importantly, put their jobs im jeopardy and deprived the

employees of the protections of the salaried employment

security plan.

younger than Bennington, were not subjected to this treatment.

James Bennington's immediate supervisor for the year

1997 prepared a very favorable review of James Bennington's

work performance in 1997. Indeed, in June or July of 1997,

James Bennington had been brought in to fix a commercial

area production line which had fallen into trouble and, in fact,

James Bennington did fix the problems with said production

line. James Bennington's immediate supervisor, Jerry

in savings in 1997.

On or about late December, 1997 or early January,

1998, James Bennington's review was changed for no work

related reason that his immediate supervisor can find. On or

about February 9, 1998, James Bennington was told to clear

2.

out his desk and was moved down to waste management in an

empty building. He was given no work to perform, placed on

public display, succumbed to the humiliation and intolerable

work conditions and potential loss of his approximately thirty-

three years of accumulated pension benefits and retired from

Caterpillar on or about May 6, 1998.

James Bennington filed the within actions against

Caterpillar, Inc. on or about April 2, 1999. James Bennington's

attorney, Dean Poignant, withdrew from the case and from the

practice of law and Petitioner contacted Attorney William M.

Anderson IV im October of 1999. Attorney William M.

Anderson IV entered his appearance on behalf of Petitioner,

James Bennington.

On July 13, 2000, the Honorable Joe McDade extended

the discovery deadline in the within cause approximately 30

days to the date of August 14, 2000 at the request of Petitioner,

herei, and over the objection of Respondent.

Attorney William M. Anderson IV received said

decision of the Court on July 17, 2000 and immediately, that

same date, sent correspondence to counsel for Respondent,

repeating his written request of June 30, 2000 for a list of dates

available to conduct discovery depositions and imforming

defense counsel of an approximately one week period when

Petitioner would be out of the State of Illinois attending

depositions in the State of Florida. On or about July 24, 2000,

Laura Lindner, counsel for Respondent, informed counsel for

Petitioner that the last possible day the Court had allowed for

depositions, to wit: August 14, 2000, was the only date

available for taking depositions. On August 4, 2000, Attorney

William Anderson requested earlier dates or, in the alternative,

an agreement to continue the discovery deadline. Attorney

William Anderson's correspondence was delayed by his

attendance of the previously mentioned depositions im Florida

employment upon his return from vacation, thus hampering the

4-

speed of which Attorney William Anderson was able to

respond to the earlier correspondence. On August 7, 2000,

Sefarth & Shaw again refused to give a specific date they

would be available and informed Petitioner that they would be

refusing to cooperate with any extension of discovery, stating

only that "there is a chance we could be available on the

morning of Wednesday, August 9 or possibly, Friday, August

11... ", knowing full well that said dates and times were too

late at that juncture for depositions to be arranged and leaving

themselves an out if, in fact, they could have been arranged.

Thus, Seyfarth. & Shaw effectively delayed for the entire

additional month that the Court had allotted for discovery, only

allowing depositions to occur on the very last day of said

discovery deadline in a sham attempt to appear to have

cooperated in good faith with the discovery in this case.

The District Court, over the objection of Petitioner,

closed discovery on August 14, 2000, denied Petitioner's

Motion to Re-Open Discovery and granted Respondent's

Motion for Summary Judgment on all counts.

James Bennington appealed the decision to the Court of

On December 28,2001, the Court of Appeals affirmed

- the decision of the District Court.

This petition for a writ of certiorari followed.

REASONS FOR GRANTING THE WRIT

L._Age Discrimination Clai

It should first be noted that petitioner’s case was

dismissed after the district court granted respondent’s motion

for summary judgment. As such, the standard for review for

all questions (other than the refusal to reopen discovery) was a

de novo standard of review. Furthermore, when viewing the

facts presented, all facts and inferences should be drawn in

favor of the petitioner.

Petitioner has no direct proof of age discrimination.

Therefore, the district court correctly held that he must prove

his claim for age discrimination under the burden-shifting

analysis established im McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Ransom v. CSC Consulting, Inc., 217

F.3d 467, 468 (7th Cir. 2000). Under the McDonnell Douglas

burden-shifting analysis used in the indirect method of proof,

the plaintiff must first prove, by a preponderance of the

evidence, a prima facie case of the alleged discrimination.

Ransom, 217 F.3d at 470. Once the plaintiff does so, a

presumption of discrimination exists, which then shifts the

burden to the defendant to present evidence of a legitimate,

non-discriminatory reason for the adverse employment

decision. Jd If and when the defendant does so, the

presumption of discrimination disappears, and the burden shifts

back to the plaintiff to show the reason(s) proffered by the

defendant is (are) merely a pretext for unlawful discrimination.

Id. Moreover, in the Seventh Circuit, a combination of direct

and circumstantial evidence, none of which standing alone

would be conclusive, may cumulatively present a "convincing

mosaic of discrimination" by which the plaintiff can survive a

motion for summary judgment. Robin v. Espo Eng'g Corp.,

200 F.3d 1081, 1088-89 (7th Cir. 2000).

In order to prove a prima facie case under the ADEA,

Bennington must demonstrate that (1) he was over 40 years

old; (2) he was performing his job satisfactorily; (3) he

suffered an adverse employment action; and (4) he was treated

less favorably than other substantially younger, similarly

situated employees. Ransom, 217 F.3d at 470. Moreover, in

responding to a summary judgment motion, Bennington need

only prove his prima facie case by a preponderance of the

evidence. See Campbell v. Fasco Indus., Inc., 861 F. Supp.

1385, 1390 & n.5 (N_D. IIL 1994) (there is a very low threshold

rs

to establish prima facie case), affd, 67 F.3d 301 (7th Cr.

1995), cert. denied sub nom. v._ Ci i

Wisconsin, 516 U.S. 1078 (1996).

Caterpillar only challenged the "substantially younger"

portion of Bennington's prima facie case. Therefore, the other

aspects of his prima facie case are deemed satisfied. Pitasi v.

184 F.3d 709, 714 (7th Cir. 1999); Campbell,

861 F. Supp. at 1390.

As Caterpillar correctly points out, an age gap of 10

years is presumed to be "substantially younger" for ADEA

purposes. Hartley v. Wisconsin Beli, Inc, 124 F.3d 887, 893

(7th Cir. 1997)). The Hartley court, however, did not foreclose

the possibility that a lesser age gap would still satisfy the

substantially younger aspect of an ADEA prima facie case: “In

cases where the [age] disparity is less, the plaintiff still may

present a triable claim if she directs the court to evidence that

her employer considered her age to be significant. In that

instance, the issue of age disparity would be less relevant."

124 F.3d at 893 (emphasis added); see also id. ("[TJhe line we

draw [the ten year age gap] 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 plaintiffs age.").

“Also, although Caterpillar and the district court

concentrated on the fact that Bennington was replaced by an

‘adividual who was only five years younger, Bennington had

sufficient additional evidence to show _ that

Caterpillar’s decision to transfer him was motivated by age. In

fact, in February, 1998, out of 100 managers in the

Communicator Group, only Bennington, John Kamp and Jerry

Siwicke were placed into “waste management”. All employees

placed in waste management were over fifty years old.

Younger employees filled the old positions. Thus, a clear

inference arises that age was a motivating factor for Murphy's

unfavorable reviews. Bennington’s performance review written

by his direct supervisor (Jerry Holloman) was very favorable.

However, after Holloman retired, Paul Wroblewski changed

his performance evaluation without any justification

whatsoever and in direct violation of Caterpillar’s own

policies. Wroblewski tried to justify his actions by stating that

the changes were made as a result of Bennington failmg to

correct problems in the Commercial Assembly area. This

allegation is completely without basis. In fact, Bennington

offered proof that the problems Wroblewski was complaining

of occurred before Bennington began supervising the area.

Bennington was placed in the Commercial Assembly area to

correct the problems that already existed. He did not cause the

problems.

In May 1997, while Bennington was a Unit Manager,

he went to speak with his immediate supervisor, Jerry

Holloman, on his own volition. Although the two production

lines that were Bennington's responsibility were in "good

shape," he wanted to inform Holloman that certain other areas

were in terrible condition and very behind schedule. Upon

Bennington the responsibility of fixing that situation, and

relieving him of his former responsibilities. Holloman gave

Bennington the additional responsibility not because he caused

the predicament, but rather because he knew Bennington was @

highly competent manager who could correct the problem.

By the fall of 1997, Bennington had worked extremely

president, inquired when various buildings would be made

current. When he did not receive the answer he wanted to

hear, he "got very angry” and threatened that if you are not

"current" by the date given, people are going to be fired.

Notwithstanding the extreme demands put on him, Bennington

made his sections current by Murphy's deadline and remained

current for the remainder of the year. When Holloman retired

at the end of that year, he wrote Bennington a very favorable

final performance review and thanked him for a job well done,

stating that "no one else could have done it better."

Upon Holloman's retirement in December 1997, Ray

Shearer replaced Holloman as Bennington's immediate

supervisor. Very soon after Holloman wrote the favorable

review, Bennington was called into Shearer's office and shown

Paul Wroblewski's changes to Holloman's review, which

turned “the good review to a completely unacceptable

managers. Furthermore, if Wroblewski disagreed with

Holloman's evaluation of Bennington, the en ae

would have been to inform Holloman before initiating any

changes to the report. In this case, however, Wroblewski

altered Holloman's review of Bennington without informing

Holloman at all. Moreover, Bennington received a favorable

mid year review from Holloman that was not challenged.

| Bennington presented testimony to the district court that these

actions were in direct violation of Caterpillar’s policies

regarding performance reviews. Bennington also presented

testimony from Holloman that Wroblewski's changes to

Bennington's review were wholly unwarranted. Also of note is

that Wroblewski's negative comments were the only negative

-9.

review Bennington had received in his 30-plus years at

Caterpillar.

Nevertheless, after being given a direct order to sign the

altered review, Bennington spoke with Shearer about his job

performance and now negative review. After Shearer stated

and that he could do it better than anyone else. In response,

Shearer again stated that he was pleased with Bennington's

work and that he had nothing "to be concerned about,” adding

that Shearer made any termination decisions for workers in his

group.

Approximately three working days later, Bennington

was tokid to report to Wroblewski's office. Dutifully,

Bennington reported to Wroblewski's office and was b

told to "go clean out your desk, do it quickly, and be quiet

about it.” No explanation was given, other than to report back

situated employees, and thus Caterpillars motion for summary

judgment on this claim must be denied. See Pitasi, 184 F.3d at

714.

Under the burden-shifting analysis, once the plaintiff

demonstrates that the adverse employment action was, at least

in part, motivated by unlawful discrimination, the defendant

may still avoid liability by showing that it would have made

the same decision in the absence of the unlawful motivation.

-10-

mmun

initiative, specifically pomting to Bennington's allegedly "poor

attitude and job performance." However, Bennington has

presented sufficient evidence to indicate that Caterpillar's

proffered non-discriminatory reason for transferring him is

merely a pretext for unlawful discrimination.

In this context, "[p]retext means a lie, specifically a

phony reason for some action." James v. Sheahan, 137 F.3d

1003, 1007 (7th Cir. 1998) (citation omitted; internal

quotations omitted). A plaintiff may establish pretext by

demonstrating any one of the following: (1) the explanation

had no basis in fact; (2) the explanation was not the real

reason; or (3) the reason stated was insufficient to warrant the

adverse job action. Jd. at 1007; Zamudio v. Patla, 956 F. Supp.

803, 813 (N.D. Ill 1997). Moreover, the plaintiff need only

prove pretext by a preponderance of the evidence. See id. at

813; Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir. 1995)

(regarding summary judgment on pretext issue, question is

_ whether plaintiff produced enough evidence from which a

rational fact finder could infer that defendant lied in proffering

non-discriminatory reason for adverse employment action).

The same facts which support Bennington's argument

regarding other evidence of discrimination also support the

present argument regarding pretext. See Part I.B.1., supra. It

is Caterpillars contention that Bennington was transferred

essentially because he avoids taking responsibility, blames

- others for his failures, and did not produce sufficient results.

The above-referenced facts, however, clearly demonstrate that

Caterpillar's purported reasons for transferring Bennington are ~

merely lies. In sum, not only did Bennington successfully

manage his own workers, but he successfully coordinated with

iit.

other departments when his responsibilities were increased,

and still met the deadlines imposed. Bennington did excellent

work and played key role in difficult job of making problem

area current. In fact, Holloman stated in his declaration that,

Bennington was "best [manager] I had ever seen”. See also

Brown v. City of Aurora, 942 F. Supp. 375, 381 (N.D. Ii

1996) ("The Court does not believe that there can be a bright-

should focus on the type and frequency of the remark, the

context in which the remark was stated, the period of time

between the remark and the adverse employment action,

whether the remark was uttered by the decision maker, and any

reason for transferring him, and thus Caterpillar’s motion for

summary J on this claim should have denied. See

Pitasi, 184 F.3d at 714. .

-12-

members of that group were told to look for other work.

However, the unwarranted negative alterations to Bennington's

review made it virtually impossible to get other work within

Caterpillar. Clearly, the title Special Projects Group is merely

a polite term for what is im reality a dumping ground for

unwanted employees. Whatever title one puts on this group of

Caterpillar employees, the fact remains that Bennington was a

part of that group. Consequently, the logical inference from

Caterpillar’s actions is that it intended these employees to get

out of the company. Accordingly, the above described facts

provide strong circumstantial evidence that Bennington was

discriminated against.

Additionally, Caterpillar suggests Bennington was

"unreasonably sensitive to his working environment" in that

several weeks after being transferred to the "Special Projects

Group," Bennington allegedly voluntarily retired. Bennington

only very reluctantly decided to retire, given his bleak outlook

at Caterpillar. At that point, Bennington had basically been left

to spend his "working" days at Caterpillar in a vacant room

with nothing to do, having been told to look for another job.

However, the negative review assured Bennington that he

would be unable to find another position at Caterpillar and

furthermore deprived Bennington of the protections of

Caterpillar’s Salaried Employment Security Program. As such,

Bennington was left in “waste management” where he had no

of another position with Caterpillar and where he

was in fear of being fired and losing all retirement benefits.

No reasonable person could withstand these circumstances and

would eventually leave the company. Given these dire

circumstances, and after considering his financial

.

discharge), cert. denied, 474 U.S. 1102 (1986). In light of

these facts, Bennington's decision to "retire," rather than

remain in waste management at Caterpillar, was certainly

reasonable. See Zor v. Helene Curtis, Inc., 903 F. Supp.

1226, 1249 (N.D. IIL 1995) (constructive discharge claim is

not automatically defeated by fact that plaintiff endured

environment for some time; plaintiff may either quit "cold

turkey” or endure lengthy period of turmoil) (citing Rodgers v.

Western-Southern Life Ins. Co., 12 F.3d 668, 677 (7th Cr.

1993)).

Bennington at least has demonstrated that a genuine

issue of material fact exists on his constructive discharge

claim, and thus Caterpillar’s motion for summary judgment on

this claim should have been denied. See Pitasi, 184 F.3d at

714.

A hostile environment claim is based upon conduct

which "has the purpose or effect of unreasonably interfering

with an individual's work performance or creating an

intimidating, hostile or offensive working environment."

Venters v. City of Delphi, 123 F.3d 956, 975 (7th Cir. 1997)

(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65

(1986)). The hostile environment analysis is based on the

totality of the circumstances. Venters, 123 F.3d at 975

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993));

Zorn, 903 F. Supp. at 1240 & n.13 (no single factor is required

in determining whether environment is hostile; isolated

instances must be evaluated cumulatively to realistically view

work environment) (citing Doe v. R.R. Donnelley & Sons Co.,

42 F.3d 439, 443 n3 (7th Cir. 1994)). Whether a hostile

environment existed must be judged from both an objective

and subjective point of view. Venters, 123 F.3d at 975-76.

Under the subjective view, the court must look at the facts as

the plaintiff, whereas the objective view calls for the court to

examine the facts as a reasonable person. /d at 976. By his

filing of the instant lawsuit, it is evident that Bennington views

-14-

Caterpillars conduct as creating a hostile environment.

Therefore, the critical aspect of this analysis must focus on

whether a reasonable employee would view Caterpillar's

conduct as such.

Under the objective view, the court should consider

factors such as "the frequency of the discriminatory conduct;

its severity, whether it is physically threatening or humiliating,

or a mere offensive utterance; and whether it unreasonably

interferes with an employee's work performance." Wilson v.

, 172 F.3d 500, 510 (7th Cir. 1999) (quoting

Harris, 510 U.S. at 23). Moreover, "[t}he criterion is not what

a reasonable employee is capable of enduring but whether the

offensive acts alter the conditions of employment." Wilson,

172 F.3d at 510. Based on the facts of this case, Bennington

has established facts sufficient to emable his hostile

environment claim to survive summary judgment. In fact,

Bennington has satisfied all of the above suggested objective

criteria in the hostile environment analysis.

One of the factors to consider is the frequency of the

discriminatory conduct. In this case, not only was Caterpillar's

discriminatory conduct frequent, but it was virtually constant.

The basis for Bennington's claims involve his transfer to waste

management and the totally unreasonable conditions therein.

Once Caterpillar transferred Bennington to waste management,

he remained there until he left the company. Therefore, the

hostile environment Bennington was made to suffer was on a

continual basis; five days a week, eight hours per day. Another

factor to consider is the severity of the hostile environment and

the humiliation involved. In this case, Bennington was

directed to sit in an empty warehouse all day with nothing to

do. Moreover, being associated with waste management was

extremely embarrassing and humiliating. Bennington was put

down in the shop where people could walk by and view you

from the windows outside. Bennington was humiliated and

lived with the constant fear that at any moment, someone

-15-

would walk in and tell him to clean out his drawers and get out

of there, that he was no longer employed with Caterpillar.

The final suggested factor to consider is whether the

Bennington m waste management. As stated above,

Bennington was given no work and no responsibilities.

Consequently, Caterpillar either interfered with Bennington's

job performance, or, alternatively, failed to give him any

responsibilities to interfere with at all

Moreover, the above-described discrimination was age-

based. Dan Murphy, a Caterpillar vice-president, stated on at

least one occasion, that he was creating a “Waste

Management” Department. As previously indicated, that term

was commonly known by Caterpillar employees to mean a

dumping ground for unwanted employees. As all of the

employees placed in waste management with Bennington were

over 50 years of age, and employees younger than the

displaced employees filled in their old positions, an inference

arises that age was a motivating factor for Murphy's decision to

place Bennington mm waste management.

Bennington has demonstrated a genuine issue of

material fact exists on his hostile environment claim,

constructive discharge claim and by his transfer to waste

management under the ADEA and thus Caterpillar’s motion for

summary judgment should have been denied. See Pitasi, 184

F.3d at 714.

-16-

' ;

_o ee oe sonal Dist

Under Illinois law, the essential elements for an ITED

claim are threefold: (1) extreme and outrageous conduct, (2)

done either with the intent or knowledge of a high probability

that it will, (3) cause severe emotional distress. Holder _v.

Ivanjack, 39 F. Supp. 2d 964, 969 (N.D. Il. 1999) (citing

F. Supp. 2d 899, 903 (C.D. Ill 1999) (in

judgment, court must view evidence in light most favorable to

depending

particular facts presented. Schroeder, 875 F.2d at 623.

Especially relevant to the present inquiry is the fact that

"{e]xtreme and outrageous conduct may be the result of an

abuse of a position of power". Holder, 39 F. Supp. 2d at 970.

[T]he more control which a defendant has over

the plaintiff, the more likely that defendant's

conduct will be deemed outrageous,

particularly when the alleged conduct ‘involves

either a veiled or explicit threat to exercise

such authority or power to plaintiffs detriment.

Threats, for example, are much more likely to

$7.

be a part of outrageous conduct when made by

someone with the ability to carry them out

[than] when made by someone in a

comparatively weak position.

Patterson, 901 F. Supp. at 279 (quoting McGrath v. Fahey, 126

IIL 2d 78, 533 N.E.2d 806, 809 (1988)). In the mstant case,

Bennington has alleged that his employer and supervisors were

the actors for purposes of his ITED claim. See generally Am.

CompL As such, they were in a position of authority over him

and used that power and authority to cause the extreme and

outrageous conduct in this case. Therefore, Bennington has

clearly identified extreme and outrageous conduct to make out

a prima facie ITED claim.

Caterpillar further attacks Bennington's ITED prima

facie case as lacking evidence of severe emotional distress. In

its Memorandum, Caterpillar argues that Bennington's IIED

claim must fail because there is no evidence indicating that

Bennington suffered such severe emotional distress as to

warrant hospitalization, psychiatric treatment, or prescription

medication. However, an IIED plaintiffs injuries do "not need

to result in physical injury or the threat of physical injury".

Holder, 39 F. Supp. 2d at 969 (citing Schroeder, 875 F.2d at

623). In consideration of the fact that Caterpillar was

attempting to terrorize these employees who were placed m

waste management and forced their retirement, it is quite

obvious that Caterpillar was intentionally inflicting emotional

distress upon James Bennington and the other employees

placed in waste management.

It must be remembered that supervisory personnel were

placed in a vacant room with nothing to do, and placed on

display in this empty building in a vacant room which

Bennington likened to a POW camp. This building was a shop ain

where people could walk by and view you from the windows

outside. It was common knowledge throughout Caterpillar that

-18-

these were unwanted employees. Further, as a result of the

unwarranted change to his performance review, Bennington

was removed from the Salary Protection Program offered by

Caterpillar and had been stripped of all job security.

Bennington was put on public display, humiliated and lived

with the constant fear that at any moment, someone would

walk in and tell him to clean out his drawers and get out of

there, that he was no longer employed with Caterpillar. Being

53 years old, and after having worked hard for Caterpillar for

thirty-three years, Bennington was placed in the impossible

situation of having to choose to retire early or to risk losing the

retirement benefits which he had worked to secure for nineteen

years. The unbelievable stress caused by this situation was

such that no reasonable person could withstand it and would

eventually leave the company. Bennington was placed m

waste management on or about February 9, 1998. He was only

able to remain in said position and withstand the stress created

by it until May 6, 1998. When he could no longer tolerate the

stress and the intolerable position in which he was placed,

Bennington opted for early retirement. This was exactly the

response that Caterpillar was hoping for in order to eliminate

fifty management positions.

Despite ali of these facts (which the district court must

take as true when considering a motion for summary

judgment), the district court held that Bennington failed to

point to any facts that would indicate he has suffered any

emotional distress at all. Bennington clearly stated a prima

facie case for his claim of intentional infliction of emotional

distress.

-19-

Ill. Refusa! to Reopen Discovery

The district court denied petitioner’s motion to reopen

discovery in the instant case. It is quite possible that

Magistrate Gorman, after only a few weeks on the Federal

Bench, was not aware that Attorney William Anderson had

recently taken over the within case and was not the original

attorney for Petitioner.

Further, in the court of appeals decision affirming the

ruling of the district court, it states that “Bennington contends

that the district court erred in not reopening discovery after the

deadline had expired”. This statement shows that the court of

appeals did not fully understand the situation. The discovery

deadline was August 14, 2000; petitioner’s motion to reopen

discovery was not filed after the deadline had expired, but

rather was filed prior to the expiration of the applicable

deadline, on August 10, 2000.

It is clear from the record in this case that Attorney

William M. Anderson IV took over this pending litigation after

the withdrawal from the practice of law by Attorney Dean

Poignant. As such, William Anderson was left in the position

of undertaking representation in the within case without the

normal lead time which would be established in preparing said

litigation. |

In addition, the basic purpose of the Federal Rules is to

administer justice through fair trials and not through summary

dismissals as necessary as they may be on occasion. These

rules were designed in large part to get away from some of the

old procedural booby traps which common law pleaders could

set up to prevent litigants from ever having their day in court.

If rules of procedure work as they should in an honest and fair

judicial system, they not only permit, but should as nearly as

possible guarantee that bona fide complaints be carried to an

adjudication on the merits. Surowitz v. Hilton Hotels Corp.,

383 U.S. 363 (1966)

-20-

In the within case, it is clear that the Respondent has

used the rules of procedure to prevent Petitioner from

conducting reasonable discovery in the within case. An

examination of the correspondence between counsel and

Petitioner's Motion to Re-Open Discovery will show that

Petitioner was making every attempt to proceed forward with

discovery depositions and that these efforts were constantly

frustrated by attorneys for Respondent.

Indeed, Respondent played games, like only making a

~ deponent available upon the last day of discovery and then

objecting to any continuation of discovery deadlines. Then in

later correspondence, when time was too short to be practical,

stating that an earlier date might be available but refusing to

commit to specific dates and times of availability.

When it became clear that oral requests for discovery

scheduling would be denied by attorneys for the Respondent

and that the Respondent's attorneys would even attempt to

claim that said efforts had never even been made. Attorney for

Petitioner began requesting scheduling of depositions in

writing by correspondence on June 30, 2000 and on July 17,

2000, which correspondence was not responded to until July

19, 2000 and, even then, no schedule of available dates was

even given as requested in the correspondence approximately

three weeks earlier of June 30, 2000. When Petitioner again

corresponded on July 17, 2000 only a partial response was

received until July 24, 2000 when Respondent's counsel knew

from Petitioner's prior correspondence that he would be out of

the State of Illinois for approximately one week. Said

correspondence stated that they could only proceed with

depositions on the very last day that the Court had approved

for conclusion of discovery. Upon learning of Respondent's

request for August 14, 2000 deposition date, counsel for

Petitioner again sent correspondence to counsel for Respondent

dated August 4, 2000 requesting dates prior to August 14, 2000

to conduct additional discovery or, in the alternative, informing

-21-

Attorney for Respondent that it would be necessary to file a

motion to extend the discovery deadline. It should be noted

that this correspondence of August 4, 2000 was sent by

facsimile to bring a quick resolution. On August 7, 2000

Attorneys for Respondent responded stating that there is a

"chance" they could be available on one or two days prior to

the 14% of August, the deadline the Court had imposed and,

notifying Petitioner that they would object to any continuation

of discovery, after they had effectively delayed discovery to

the point where it could not conclude by the deadline

established by the Court.

As such, Petitioner filed its motion on August 10, 2000

to extend the amended discovery deadline. This motion to

extend the discovery deadline was denied by Magistrate Judge

Gorman.

The court of appeals in affirming the decision of the

district court misquoted petitioner’s attorney when he

conceded that he probably was not as diligent as he should

have been in pursuing discovery. This statement is quoted by

the court of appeals out of context. Petitioner’s attorney had

made this statement referring to the time when he had imitially

taken over the case and after explaining to the court of appeals

the obstacles which respondent’s attorney had placed to

completing discovery. It is a rare person who, when looking

back in hindsight, cannot think of anything he could have done

Federal Rule 30.1 of the local rules of the United States

District Court for the Central District of Illinois, to wit:

"Rule 30.1 '- Scheduling of Depositions -

In scheduling any deposition, counsel must

make a good faith effort to coordinate with all —

opposing counsel the scheduling of a time that

is mutually convenient to all opposing counsel

and parties. The signing and serving of a Notice

-)-

of Deposition shall constitute a certification by

the attorney signing and serving the Notice of

Deposition that the attorney has complied with

this rule."

Pursuant to the above quoted Rule 30.1 regarding

scheduling of depositions, the signing and serving of a Notice

of Deposition shall constitute a certification by the attorney

signing and serving the notice that the attorney has complied

with this rule. In other words, counsel for petitioner was

required to make a good faith effort to coordinate with all

opposing counsel the scheduling of time and date—for_said

depositions that are mutually convenient to all counsel and

Attorney William M. Anderson attempted to comply

with this rule by repeatedly asking for available dates with

opposing counsel and if Attorney William M. Anderson had

merely noticed up all dates for all requested discovery

depositions on dates that were convenient only to William M.

Anderson, then this Court surely would have allowed said

discovery to proceed forward even if said dates had been

inconvenient to the defense counsel, however, this would have

violated the spirit and letter of Rule 30.1.

Caterpillar also created another reason to re-open

discovery when it filed the Declaration of Paul E. Wroblewski

management) on or about August 28, 2000. Caterpillar -

ap had the Declaration of Paul E. Wroblewski since

July 21, 2000, the date it was executed, but did not file it with

this Court until after the deadline for discovery had passed.

There are several major discrepancies between the Declaration

of Paul E. Wroblewski and the testimony of others deposed in

the case, to date. These differences include, but are not limited

to, the fact that Paul Wroblewski claims that Bennington had

over 200 employees when, in fact, Bennington had

-23-

approximately 107 employees. Further, Wroblewski claimed

that Bennington promised to have orders current by the end of

May, 1997 in paragraph 14 of his Declaration, however,

Bennington did not even assume responsibility for this

commercial area until June or July of 1997 -

However, one of the most telling items in Wroblewski's

declaration and one of the most important reasons for re-

opening discovery is that fact that in paragraph 23 of

Wroblewski's declaration, it is admitted that there was a

decision between Dan Murphy and the people who report

directly to him, including Wroblewski, to eliminate from

management some managers and supervisors. Caterpillar gives

different reasons for the elimination of these managers and

supervisors, as might be expected, however, it remains that

Caterpillar has, in effect, admitted that they were undertaking a

program to eliminate management employees. As such, it is

only reasonable that given this information, Petitioner be

allowed to pursue said information to determine and prove that,

in fact, all of the management employees who Caterpillar

removed through this program were replaced by employees

younger than those employees eliminated.

Caterpillar appears to be working very hard, even to the

point of an unwarranted attack on the veracity of Petitioner's

couusel in order to prevent Bennington from obtaining

information which would show the number of elderly

employees forced into retirement and allow petitioner to prove

his contention that these employees were all replaced by

younger employees.

Petitioner should not be prejudiced for repeatedly

attempting to schedule said depositions with respondent's

counsel and for following local Rule 30.1. In addition,

respondent should not be able to sit back and refuse. to

cooperate with discovery and then reap the benefits of such

conduct.

-24-

As such, it is clear that in order to do justice in the

within case, petitioner must be allowed to conduct reasonable

discovery and has not, as yet, had that opportunity because of

the interference of counsel for respondent.

CONCLUSION

For the above reasons, petitioner respectfully prays that

this Petition for a Writ of Certiorari be granted.

Respectfully submitted,

625 South Main

Creve Coeur, Illinois 61610

(309) 694-6250

-25-

APPENDIX

TABLE OF CONTENTS

OF APPENDIX

Decision from the US Court of Appeals ...............-.. A-1 - A-10

Judgment in a Civil Case ...........scscecsssssessenssensesensessenenseees A-11

Order (1-12-01) .....ccccccccscosssccccccccccccccccccesssresssscees A-12 - A-24

Relevant Statutes .............s.ccsccsccccsocesccescsesessoseess A-25 - A-39

Motion to Reconsider ..............scsseseseeeeeeeeseeeeeeeeees A-40 - A-59

Order (1-31-01) ..........sc.ccscsscscscsecccencceccenssnsscsscsoses A-60 - A-62

Plaintiffs Memorandum in Opposition

to Defendant’s Motion for Summary Judgment ..... A-63 - A-95

Motion to Re-Open Discovery ...........--ssssseeesees A-96 - A-101

Declaration of Jerry B. Holloman ................200++ A-102 - A-110

Performance Evaluation of

In the

United States Court of Appeals

for the Seventh Circuit

No. 01-1361

JAMES BENNINGTON,

Plaintiff-Appellant,

v.

CATERPILLAR INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 99 C 1111 - Joe B. McDade, Chief Judge

ARGUED NOVEMBER 30, 2001

DECIDED DECEMBER 28, 2001

Before FLAUM, Chief Judge, and CUDAHY and

MANION, Circuit Judges. )

FLAUM, Chief Judge. The appellant, James

Bennington, has filed the instant appeal contesting the district

court’s grant of summary judgment against him and the district

court’s refusal to grant an extension of discovery. For the

reasons stated herein, we affirm the decisions of the district

court.

I. BACKGROUND

James Bennington was born in 1944 and began his

employment with Caterpillar, Inc. (“Caterpillar”) in 1965. He

continued to work with that company until 1998. In 1987,

after several years of exemplary performance, Caterpillar made

Bennington a manufacturing superintendent in its Mossville,

Illinois facility. In the mid-1990's, Caterpillar changed

Bennington’s title to unit manager. During the course of the

1990s, Bennington was transferred to different areas within the

Mossville plant. In 1997, Bennington was transferred to

Building DD on the Mossville plant and was charged with the

supervision of the first shift of two assembly lines. When

_ Bennington was first transferred to this position, his immediate

supervisor was Jerry Holloman. Holloman was responsible to

Paul Wroblewski, then the Operations Manager at the

Mossville facility.

The events giving rise to the current dispute began

when Caterpillar implemented an initiative to bring a “team-

based management structure” to the plant where Bennington

worked. That initiative was entitled “Vision, Values, and

Time.” While Caterpillar was implementing its initiative, it

~ was also in the process of closing down one of the buildings on

the Mossville facility and transferring employees from that

facility to the building where Bennington worked. Bennington

supervised this relocation process arid retained his other

responsibilities.

A-2

In December, 1997, Jerry Holloman retired from

Caterpillar. Prior to his retirement, however, he completed a

performance evaluation for Bennington. On the whole,

Holloman’s evaluation of Bennington was quite favorable.

However, the evaluation also stated that Bennington should

have used certain tools, “8D teams of FMEA activities,” in his

capacity as a supervisor. Caterpillar claims that these

comments were critical of Bennington and Bennington

contends that they merely set forth goals for the coming year.

While Holloman characterized his evaluation of Bennington as

an “extremely good review,” Caterpillar management reviewed

the report and found that it did not adequately reflect its

concerns with Bennington’s performance. Therefore,

Holloman’s supervisor, Paul Wroblewski, made several

changes to Bennington’s review.

As a result of these changes, Bennington was

eventually given a very negative performance evaluation for

1997. Specifically, the evaluation noted that Bennington

avoided taking responsibility for his results, that inventory,

accuracy, quality and safety in Bennington’s area of

supervision did not meet appropriate standards and that

Bennington’s efforts at implementing team-based initiatives

were minimal. Caterpillar supervisors also created a

supplemental evaluation criticizing Bennington for his failure

to apply leadership skills to problems arising in the area he

supervised.

In February, 1998, Caterpillar decided to eliminate

Bennington’s position. Caterpillar contends that this decision

was consistent with its teamwork imitiative. Although the

company did eliminate Bennington’s position, it did not

terminate Bennington. Instead, Bennington was transferred,

along with other managers whose positions had been

eliminated, to a unit entitled “Special Projects Group.”

A- 3

According to Bennington, the Special Projects Group was

routinely referred to by his supervisors as “waste management”

and his duties there were minimal. Bennington remained at the

same rate of pay after this transfer, however, he was assigned

to an empty work area and wes told to look for work.

Shortly after this transfer, Bennington told his

supervisors that he was contemplating retirement. According

to Bennington, he felt undermined by his 1997 review and the

elimination of his position. Bennington announced his

retirement in April 1998 and officially retired that July.

After his retirement, Bennington filed suit against

Caterpillar. Bennington’s complaint alleged that Caterpillar

had violated the Age Discrimination in Employment Act

(“ADEA”) by transferring him, by constructively discharging

him and by creating a hostile work environment. Bennington

also alleged that Caterpillar intentionally inflicted emotional

distress upon him.

After the discovery deadline had passed, Bennington

filed a motion for an extension. This motion was denied.

Caterpillar then filed a motion for summary judgment, which

was briefed by the parties. After briefing of the motion, the

district court granted summary judgment against Bennington

on all counts. Bennington filed the instant appeal. ‘

Il. DISCUSSION

We review a district court’s grant of summary

judgment de novo, viewing all facts and drawing all reasonable

inferences in the non-moving party’s favor. Spearman v. Ford

Motor Co., 231 F.3d 1080, 1084 (7* Cir. 2000). We exercise

an abuse of discretion standard over a district court’s refusal to

reopen discovery.

h-4

A. Grant of Summary Judgment

The district court granted summary judgment on all

four counts of Bennington’s suit. As will be described more

fully below, we agree with the district court’s disposition of

Bennington’s claims, as Bennington has failed to create a

factual record that would permit his case to go to trial.

1. Prima Facie Case of Age Discrimination

In ruling on Caterpillar’s summary judgment motion,

the district court concluded that Bennington failed to establish

a prima facie case of age discrimination by Caterpillar.

Bennington has conceded that he presented no direct evidence

that Caterpillar discriminated against him because of his age.’

Accordingly, his claim must be analyzed pursuant to the

indirect burden-shifting approach set forth under McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the

McDonnell-

Douglas test, in order to establish a prima facie case of age

discrimination, a plaintiff must prove that he was: (1) in a

protected class; (2) performing his job satisfactorily; (3) the

subject of an employment action that was materially adverse;

and (4) that other substantially younger and similarly situated

employees were treated more favorably than the plaintiff. See

Gonzales v. Ingersol Milling Machine Co., 133 F.3d 1025,

1031 (7* Cir. 1998). The district court determined that

Bennington failed to state a prima facie case because he could

not satisfy the fourth element of the above test: that other

' According to the precedent of his court, direct evidence is

“evidence that can be interpreted as an acknowledgment of

discriminatory intent by the defendant or its agents.” Hill v.

Burrell Communication Group, 57 F.3d 665, 667 (7™ Cir.

1995) (internal citations omitted).

fAi-5

substantially younger and similarly situated employees were

treated more favorably than the plaintiff. Having reviewed the

record below, we agree with the district court’s decision.

At the outset, we state that the record is bereft of facts

supporting Bennington’s claims of age discrimination. We

must base our review only upon those facts that were a part of

the record before the court below. Plakas v. Drinski, 19 F.3d

1143, 1147 (7 Cir. 1994). When we examine that record, we

find that Bennington has offered proof that only one other

similarly situated and younger employee was given preferential

treatment. That employee, Perry Lubber, took over

Bennington’s responsibilities when he was transferred to the

Special Projects Unit and was only five years younger than

Bennington. Generally, when both the plaintiff and those

allegedly favored over him are within the same protected class,

“the prima facie case under the ADEA require[s] a sufficient

disparity in ages.” Hartley v. Wisconsin Bell, Inc., 124 F.3d

887, 892 (7 Cir. 1997). This court “consider[s] a ten year

difference in ages (between the plaintiff and [his] replacement)

to be presumptively ‘substantial’” Id. at 893. In Hartley, this

court concluded that a seven-year difference between the

- plaintiff and the employees allegedly favored over her was not

significant enough to present a prima facie case under the

ADEA. Just as in Hartley, the five-year difference in age

between both Bennington and Lubbers is not substantial

enough (in and of itself) to set forth a prima facie age

discrimination case.

In cases where the age difference between the plaintiff

. and the individual treated more favorably is less than ten years,

“the plaintiff still may present a triable claim if [he] directs the

21 ubber, as an individual over forty years of age, was also in a

protected class pursuant to the ADEA.

h-6

court to evidence that [his] employer considered [his] age to be

significant.” Jd. Bennington has not presented any evidence

that Caterpillar’s decisions affecting his employment were

motivated by his age. Even assuming, as we must, that the

Special Projects Unit to which Bennington and other managers

were assigned had been derisively referred to as “waste

management” by Caterpillar higher-ups, or that Bennington’s

review was changed improperly, such comments or actions do

not (without more facts) evidence hostility on the basis of age.

The insubstantial difference in age between Bennington and

Lubbers and the absence of discriminatory animus by

Caterpillar supports the district court’s grant of summary

judgment on this claim.

2. Constructive Discharge

The district court’s ruling on Bennington’s constructive

discharge can be affirmed largely for the same reasons as set

forth above: the record contains no evidence of Caterpillar’s

discriminatory animus towards Bennington. To establish that

he was constructively discharged, Bennington must show that

“his working conditions were so intolerable that a reasonable

person would have been compelled to resign.” Simpson v.

Borg-Warner Automotive, Inc., 196 F.3d 873, 877 7 ce.

1998). Bennington must also demonstrate that the working

conditions were intolerable because of impermissible age

discrimination. Id; see also Drake v. Minnesota Mining &

Mfg. Co., 134 F.3d 878, 886 (7 Cir. 1998). Bennington has

also failed to link the conditions of his employment to any age- —

related bias on the part of Caterpillar. Accordingly, we affirm

the decision of the district court.

3. Hostile Work Environment

- Bennington asserts that he was subjected to a hostile

work environment because of his age. This Circuit has

assumed, without deciding, that plaintiffs may bring hostile

environment claims under the ADEA. See Halloway v.

Milwaukee County, 180 F.3d 820, 827 (7 Cir. 1999). We will

do likewise here because we conclude that, even if such a

hostile work environment claim could be brought under the

ADEA, Bennington could not prevail.

In order to succeed on a hostile work environment

claim, “the environment must be both objectively and

subjectively offensive, one that a reasonable person would find

hostile or abusive, and one that the victim did in fact perceive

to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787

(1998). To determine the hostility of an environment, a court

must examine the “frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating; or

a mere offensive utterance . . .” Jd. at 787-88. As stated above,

Bennington has failed to produce evidence that the alleged

offensive conduct was discriminatory. Based upon the record

before us, Caterpillar officials may have been rude or unfair to

Bennington. However, absent-more facts this conduct does not

rise to the level of legally redressible discrimination.

4. Intentional Infliction of Emotional Distress

_ We also affirm the district court’s disposition of

Bennington’s Illinois common law claim for intentional

' infliction of emotional distress. Under Illinois law, the

elements of a claim for intentional infliction of emotional

distress are as follows: (1) the conduct involved must be truly

extreme and outrageous; (2) the defendant must either intend

the infliction of emotional distress or know that there is a high

A-8

probability that his conduct will result in such distress and; (3)

the conduct must in fact cause severe emotional distress.

McGrath v. Fahey, 553 N.E.2d 806, 809 (Ill 1988). in

addition, Bennington’s distress must be “so severe that no

reasonable man could be expected to endure it.” Id.

from the bald assertions contained in

Bennington’s complaint, there is scant evidence that Caterpillar

intended to inflict distress upon him. Furthermore, Bennington

has proffered no evidence (either in the form of medical

documentation or deposition testimony) that he has in fact

suffered from any form of emotional distress. Because

Bennington “cannot leave it to this court to scour the record in

search of factual or legal support for” his allegations, we affirm

the decision of the district court with respect to this claim as

well. Colburn v. Trustees of Indiana Univ., 973 F.2d 581, 593

(7® Cir. 1992).

B. Refusal to Reopen Discovery

Lastly, Bennington contends that the district court erred

in not reopening discovery in this case after the deadline had

expired. Prior to the district court’s decision on this matter,

this case had a rather lengthy history. Bennington’s first

counsel was replaced by a substitute counsel and the discovery

deadline was extended. After this seventh month extension

Bennington’s second counsel moved to reopen discovery. At

oral arguments, counsel for Bennington conceded that after the

discovery extension was granted he “probably was not as

diligent as [he] should have been in pursuing discovery...” In

light of the procedural meanderings of this case (two separate

counsel and at least one discovery extension), this court cannot

conclude that the district court acted outside the bounds of its

discretion in denying Bennington’s motion.

A-9

Il. CONCLUSION

For the foregoing reasons, we AFFIRM the decisions of

the district court. |

Clerk of the United States Court of

Appeals for the Seventh Circuit

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

JUDGMENT IN A CIVIL CASE

JAMES BENNINGTON

vs. Case No. 99-1111

CATERPILLAR, INC.

& DECISION BY THE COURT. This action came before the

Court. The issues have been heard and a decision has been

rendered.

IT IS ORDERED AND ADJUDGED that summary

judgment is entered in favor of Defendant and against Plaintiff.

Each party to bear costs of the suit.

ENTER this 12 day of January, 2001.

/s/ John M. Waters

JOHN M. WATERS, CLERK

/s/ H. William

BY: DEPUTY CLERK

A- 11

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

JAMES BENNINGTON, _)

Pint, )

VS. ; Case No. 99-1111

CATERPILLAR, INC.,

Defendant. ‘

ORDER

Before the Court are Defendant’s Motion for Summary

Judgment (Doc. #35) and Plaintiffs Motion to Re-Open

Discovery (Doc. #40). Plaintiff brought suit against Defendant

alleging violations of the Age Discrimination in Employment

Act (ADEA) and intentional infliction of emotional distress.

The Court has jurisdiction over this matter pursuant to 28

U.S.C. § 1331 and § 1367. For the reasons set forth below,

- Defendant’s Motion for Summary Judgment will be granted

and Plaintiff's Motion to Re-Open Discovery will be denied.

BACKGROUND

Plaintiff James Bennington (“Bennington”) began his

employment with Defendant Caterpillar, Inc. (“Caterpillar”) in

1965 as a machine shop apprentice. (Defendant’s Statement of

Undisputed Facts, Doc. #38 41 (hereinafter Def.’s Stat. ¥]2-4

and 915-21.)

In 1987, Caterpillar transferred Bennington to its

Mossville, Illinois plant. (Def.’s Stat. 415.) His title at that

time was Manufacturing Superintendent. (Def.’s Stat. 915.) In

A-12

1989, Bennington was transferred from first to second shift to

supervise the assembly area. (Def.’s Stat. 915.) About 7

months later, Bennington was transferred back to the day shift

and began supervising component manufacturing at the same

facility (Def.’s Stat. 417.) In the mid 1990's, Bennington’s title

changed to Unit Manager. (Def.’s Stat. q18.) In 1996,

Caterpillar decided it only needed one Unit Manager in the

area to which Bennington was assigned, so, they eliminated

Bennington’s position and transferred him to another area as a

troubleshooter to help reduce engine assembly defects. (Def.’s

Stat. 419.) In January of 1997, Bennington was laterally

transferred to another area, building DD, to manage assembly

lines during the day shift. (Def.’s Stat. 20.) There were four

assembly lines in building DD at that time. Bennington

supervised two of them and another manager supervised the

other two as well as the paint department and engine test area.

(Def.’s Stat. §21.)

When Bennington was first transferred to building DD,

his direct supervisor was Jerry Holloman, the factory manager

of that building. (Def.’s Stat. $25.) Also at that time,

Caterpillar was in the process of closing down another building

and transferring some of the operations from the closed

building to building Dd. (Def.’s Stat. 27.) Some time after

this transition, Bennington began supervising the relocated

operations, referred to as “commercial assembly work.”

(Def.’s Stat. $28.) Bennington also retained responsibility over

shipping. (Def.’s Stat. 28; Plaintiffs Response to

Defendant’s Undisputed Facts, Doc. #44 928 {hereinafter Pl.’s

Resp.]) The date that Bennington was transferred is in dispute.

Bennington asserts he was transferred on or after June 1, 1997.

(P1.’s Resp. §28.) Caterpillar asserts Bennington was

transferred prior to May of 1997. (Def.’s Stat. 733.)

Bennington states that he was transferred to the

commercial assembly work area because the area was in

“trouble” and he was supposed to bring it up to speed. (PI.’s

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Resp. 32.) On the other hand, Caterpillar states the are began

failing to meet shipment dates shortly after Bennington began

supervising it. (Def.’s Stat. $32.) This factual dispute is

related to the dispute over when Bennington assumed

responsibility for the commercial assembly area, since the

trouble began in that area prior to May of 1997. (Def.’s Stat.

33; PL’s Resp. $33.)

In November or December of 1997, Jerry Holloman,

Bennington’s direct supervisor, retired. (Def.’s Stat. 934; Pl.’s

Resp. 934.) Prior to his retirement, Holloman prepared

Bennington’s 1997 performance evaluation. (Def.’s Stat. $35.)

In the evaluation, Holloman stated that Bennington should

include “8D teams or FMEA activities” in his next years plan.

(PL’s Resp. $36.) Caterpillar states that these comments were

criticism; Bennington argues that they were goals. (Def.’s Stat.

936, PL’s Resp. $36.) Bennington states the evaluation initially

prepared by Holloman was an “extremely good review.” (PL’s

Resp. 936.) Caterpillar states the evaluation was more critical.

(Def.’s Stat. 36-37.) Nevertheless, it is the general practice of

Mossville managers to review performance evaluations

prepared by subordinates. (Def.’s Stat. 938.) In accordance

with this practice, Paul Wroblewski reviewed Holloman’s

evaluation of Bennington and made several handwritten

changes to the evaluation. (Def.’s Stat. 439.) Caterpillar states

these changes were made because Wroblewski believed

Holloman’s evaluation did not accurately reflect Bennington’s

performance and Caterpillar further states that this belief was

based on Wroblewski’s knowledge of Bennington’s job

performance. (Def.’s Stat. 939.) Bennington asserts the

changes were not made because of any performance deficits on

his part. (P1.’s Stat. $39.)

In the end, Bennington was given a very negative 1997

performance evaluation. (Def.’s Stat. $40.) Specifically, the

evaluation stated that Bennington avoided taking responsibility

for his results; that inventory, accuracy, quality, safety, and

p-14

expenses in Bennington’s area did not meet requirements; that

Bennington blamed others for his failures; and that

Bennington’s team initiative was minimal. (Def.’s Stat. 440.)

Wroblewski also prepared a supplement to this evaluation in

which he criticized Bennington for not applying leadership

skills and for making or blaming others for problems in the

commercial area. (De“’s Stat. $41.)

Prior to February, 1998, a decision was made to

eliminate Bennington’s position. Caterpillar states the decision

to eliminate Bennington’s position was prompted by its efforts

to eliminate managers and supervisors that were not supportive

of the “Vision, Values, and Teamwork” initiatives being

implemented in that area. (Def.’s Stat. $51.) Bennington

asserts this is a fabricated excuse for eliminating the position.

(Pls Resp. $51.)

At any rate, Bennington’s position was eliminated,

however, Bennington was not terminated. Instead, Bennington

was transferred to the Special Projects Group. (Def.’s Stat.

954.) Bennington states the Special Projects Unit was

commonly referred to as waste management, a term used to

describe when employees were moved into vacated buildings

or empty work areas and given no assignments. (Plaintiff's

Memorandum in Opposition to Defendant’s Motion for

Summary Judgment, Doc. #42 at 5 [hereinafter PL’s Opp.])

Accordingly, Bennington was assigned to an empty work area

and told to look for other work. (PI’s Opp. At 6.) Still,

Bennington remained at the same grade level after the transfer

and his pay and benefits did not change. (Def.’s Stat. 457.)

While assigned to the Special Projects. Group,

Bennington compiled information for a Caterpillar newsletter.

(Def.’s Stat. 463.) This took approximately one hour per week.

(Plaintiff's Statement of Undisputed Facts, Doc. #43, 18.)

Bennington also spent some time learning software and took a

training course titled “Zodiac - The Game of Business Finance

& Strategy”. (Def.’s Stat. 464.)

h- 15

Shortly after he was transferred, Bennington indicated

to his supervisor that he was contemplating retirement. (Def.’s

Stat. 465.) Bennington states this decision was motivated by

his belief that he had lost all protections under the Caterpillar

Salaried Employment Security Program as a result of his

negative performance evaluation. (Pl.*s Stat. 14.)

Furthermore, Bennington contends that his bad review

prevented further advancement in the company (PIl.’s Stat.

417.) And placed him in fear of being discharged. (PI1.’s Stat.

q14.) Consequently, Bennington announced his retirement in

April of 1998, stopped working on May 6, 1998, and officially

retired in July of 1998. (PL’s Resp. 965.)

After his retirement, Bennington filed this lawsuit

alleging Caterpillar violated the Age Discrimination in

Employment Act by transferring him (Count I), by

constructively discharging him (Count II), and by creating a

hostile work environment (Count III). Bennington also alleges

Caterpillar intentionally inflicted emotional distress, an

actionable tort under Illinois law (Count IV). Caterpillar has

filed a motion for summary judgment and Bennington has

responded.

ANALYSIS

MOTION TO REOPEN DISCOVERY

On August 10, 2000, Bennington filed a Motion to

Amend Discovery Deadline to allow the depositions of John

Kamp and Donald Evans. Prior to this motion, the discovery

deadline had already been changed from July 7 to August 14.

On August 14, 2000, Magistrate Judge Gorman denied

Bennington’s motion to extend the discovery deadline,

however, it appears Bennington was able to obtain the

depositions of John Kamp and Donald Evans. Bennington did

not object.to the Magistrate’s order within the 10 days allowed

under Local Rule 72.2(A). Now, Bennington asks this Court to

\- 16

re-open discovery so he can depose three more witnesses. In

support of his motion, Bennington states that newly discovered

facts derived from the depositions of John Kamp and Donald

Evans make these new depositions necessary. Specifically,

Bennington states that Donald Evans admitted to changing the

performance evaluation of John Kamp after it had been signed,

however, he denied changing the review of Jerry Siwicke.

Bennington further states that Jerry Siwicke has repeatedly

stated that Donald Evans changed his annual review. Because

of this conflict, Bennington states three more depositions are

warranted.

The Court will deny Bennington’s request to re-open

discovery. While Bennington has pointed to a conflict in the

testimony of two deponents, he has failed to show how this is

relevant to his case. Furthermore, Caterpillar has admitted that

it is common practice for higher-ups to review and alter

performance evaluations written by the empleyses immediate

supervisor, thus, eliminating the need for further depositions on

this point. For these reasons, the Court finds Bennington will

not be prejudiced if the additional depositions are not taken.

Therefore, his motion to re-open discovery is denied.

moving party is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c). The moving party has the responsibility of

informing the Court of portions of the record of affidavits that

demonstrate the absence of a triable issue. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).. The moving party may

meet its burden of showing an absence of disputed material

facts by demonstrating “that there is an absence of evidence to

f\-17

support the non-moving party’s case.” Id. At 325. Any doubt

as to the existence of a genuine issue for trial is resolved

against the moving party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242,255 (1986); Cain v. Lane, 857 F.2d 1139, 1142

(7* Cir. 1988).

If the moving party meets its burden, the non-moving

party then has the burden of presenting specific facts to show

that there is a genuine issue of material fact. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp.475 U.S. 574, 586-87 (1986).

Federal Rule of Civil Procedure 56(e) requires the non-moving

party to go beyond the pleadings and produce evidence of a

genuine issue for trial Celotex, 477 U.S. at 324.

Nevertheless, this Court must “view the record and all

inferences drawn from it in the light most favorable to the

[non-moving party]. v

883 F.2d 1307, 1312 (7® Cir. 1989). Summary judgment will

be denied where a reasonable jury could return a verdict for the

non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d

928, 931 (7® Cir. 1995).

I. AGE DISCRIMINATION CLAIMS

In his Complamt, Bennington alleges that Caterpillar

violated the Age Discrimination in Employment Act (ADEA)

by transferring him to the Special Projects Unit (Count 1), by

constructively discharging him (Count If), and by creating a

hostile work environment (Count III). Under the ADEA, it is

“unlawful for an employer . . . to fail or refuse to hire or to

discharge any individual or otherwise discriminate against any

individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual’s

age.” 29 U.S.C. § 623(a)(1); Reeves v. Sanderson Plumbing

Products, 120 S.Ct. 2097, 2105 (2000). When a plaintiff

alleges disparate treatment, “liability depends on whether the

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protected trait (under the ADEA, age) actually motivated the

employer’s decision.” Hazen Paper Co. v. Biggins, 507 U.S.

604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993); Reeves at

2105. In other words, the plaintiff's age must have “actually

played a role in [the employer’s decision making] process and

had a determinative influence on the outcome.” Id. ,

discriminatory intent by the defendant or its agents.”” Hill v.

Burrell Communication Group, Inc., 67 F.3d 734, 736 (7 Cir.

1995) (quoting Troupe v. May Dep’t Stores, Co., 20 F.3d 734,

736 (7 Cir. 1994). An example of direct evidence of

discrimination is found in Mojica v. Gannett Co., 7 F.3d 552

(7* Cir. 1993) (en banc). IN that case, “the plaintiff was told

that she was not promoted because she was not a black male.”

Hill, 67 F.3d at 667 (citing Mojica, 7 F3d at 561). Bennington

presents no such evidence here.

Thus, the Court must analyze Bennington’s claims

under the familiar three-step model of McDonnell Douglas

ion Vv 411 U.S. 792 (1973). See Reeves at

2105. First, Bennington must establish a prima facie case of

intentional age discrimination. IN order to establish a prima

facie case regarding his disparate treatment claim, Bennington

must prove he was: (1) in a protected class; (2) performing his

job satisfactorily; (3) the subject of a materially adverse

employment action; and (4) other substantially young

employees were treated more favorably. See Gonzolez _v.

illi i 133 F.3d 1025, 1031 (7 Cir.

1998); Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 892 (7°

A-19

a prima facie case, it creates a rebuttable presumption of

discrimination, and the burden of production shifts to the

employer to articulate a legitimate, nondiscriminatory reason

for its allegedly biased employment decision. Johnson v. City

of Forte Wayne, 91 F.3d 922, 931 (7 Cir. 1996); See also

Reeves at 2106. Once the defendant produces a legitimate

reason, the plaintiff bears the burden of showing that the

defendant’s proffered reason is pretextual and that the

employer’s actual reason was discriminatory. See Reeves at

2106.

With regard to a prima facie case of age discrimination,

Caterpillar argues that Bennington cannot show two elements:

(1) that he suffered a materially adverse employment action;

and (2) that he was treated less favorably than other similarly

_ Situated substantially younger employees. In addition,

Caterpillar suggests Bennington was not performing his job

satisfactorily prior to his transfer, however, it offers this

allegation as a legitimate business reason for transferring him

and not as proof that Bennington has not met his prima facie

case. Caterpillar does not dispute that Bennington is a member

of a protected class.

Under Seventh Circuit precedent “a materially adverse

change in the terms and conditions of employment must be

more disruptive than a mere inconvenience or an alteration of

job responsibilities.” Crady v. Liberty Nat’] Bank & Trust Co.,

993 F.2d 132, 136 (7 Cir. 1993). “A materially adverse

change might be indicated by a termination of employment, a

demotion evidenced by a decrease in wage or salary, a less

distinguished title, a material loss of benefits, significantly

diminished material responsibilities, or other indices that might

be unique to 4 particular situation.” Id. Still, “[nJot everything

that makes an employee unhappy is an actionable adverse

action.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7* Cir.

1996). “[Adverse job actions can include changes that do not

involve quantifiable losses in pay or benefits.” Fortier _v.

A-20

Mobile Communications, Inc., 161 F.3d 1106, 1111 (7 Cir.

1998). “For example, in Collins v. Illinois, 830 F.2d 692, 703-

04 (7* Cir. 1987), an adverse job action was found when an

employee was moved to a new department where here

supervisors did not even know what her job entailed, she lost

her office, phone, and business cards, and she was assigned to

a receptionist-type desk.” Dahm v. Flynn, 60 F.3d 253, 258

(7* Cir. 1994). Similarly, terminating supervisory authority

over other employees could constitute an adverse employment

action. Id, At 258.

Caterpillar argues that Bennington did not suffer an

adverse employment action because he maintained the same

compensation, benefits, and grade level after the transfer.

Caterpillar also points to the fact that Bennington was allowed

to participate in computer training and other courses to

improve his job skills while he was in the Special Projects

Unit. However, Bennington was given no assignments while

assigned to the Special Projects Unit and was told to seek out

his own work. Furthermore, he lost his supervisory and

management responsibilities and was transferred to an empty

work area. It appears the only thing that did not change after

the transfer was Bennington’s compensation package. Under

these circumstances, a reasonable jurist could find that

Bennington was subject to a material adverse employment

action. |

On the other hand, Bennington has failed to meet his

burden in proving that he was treated less favorably than other

similarly situated employees who were substantially younger.

“(T]he prima facie case under the ADEA require[s] a sufficient

disparity in ages between the plaintiff and those allegedly

favored over [him].” Hartley v. Wisconsin Bell, Inc., 124 F.3d

887, 892 (7* Cir. 1997)... In Hartley, 124 at 893, the Seventh

Circuit stated “we consider a ten-year difference in ages

(between the plaintiff and her replacement) to be

presumptively ‘substantial’ under O’Connor.” However, they

Pe - 21

also stated that “[i]n cases where the [age] disparity is less, the

plaintiff still may present a triable claim if [he] directs the

court to evidence that [his] employer considered [his] age to be

significant.” Hartley, 124 F.3d at 893.

In this case, Bennington claims that Perry Lubber, the

manager that took over Bennington’s responsibilities, is a

similarly situated employee who is substantially younger.

However, there is only a five year age difference between

Perry Lubbers and Bennington. Moreover, Bennington has

failed to point to any facts that would indicate Caterpillar

considered his age to be significant in their decision to transfer

him. Furthermore, the Seventh Circuit has found bigger age

differences to be insubstantial. See Hartley, 124 at 892 (seven

-year gap not substantial). Therefore, the Court finds that

Bennington has failed to present specific facts to show a

genuine issue of material fact as to whether similarly situated

employees who were substantially younger than him. were

treated more favorably. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986). Thus, summary

judgment is appropriate.

Finally, Bennington’s constructive discharge claim and

harassment claims are based on the same facts supporting his

disparate treatment claim. Both of these claims are directed to

the working conditions in the Special Projects Unit. However,

Bennington does not claim the conditions were intolerable

because of his age or that employees in this unit were treated

differently because of their age. He only claims he was

transferred to this unit because of his age. Therefore, summary

judgment as to these claims is also appropriate.

II. INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS CLAIM

In Count IV of his original complaint, Bennington

alleges Caterpillar intentionally inflicted emotional distress by

making changes to Bennington’s performance review.

Caterpillar argues this claim is preempted by the [Illinois

f- 22

Human Rights Act (IHRA) and that Bennington has failed to

meet his burden in proving intentional infliction of emotional

distress. The Court agrees that Bennington has failed to meet

his burden in proving this tort and therefore need not address

whether this claim is preempted by the IHRA.

The elements of intentional infliction of emotional

distress are (1) “the conduct involved must be truly extreme

and outrageous,” (2) the actor must either intend that his

conduct inflict severe emotional distress, or know that there is

at least a high probability that his conduct will cause severe

emotional distress, and (3) the conduct must in fact cause

severe emotional distress.” McGrath v. Fahey, 533 N.E.2d

806, 809 (Ill. 1988). To prevail, Plaintiff's emotional distress

must be “so severe that no reasonable man could be expected

- to endure it. The intensity and duration of the distress are

factors to be considered in determining its severity.” Id.

(quoting Restatement (Second) of Torts § 46, comment j)-

In his complaint, Bennington states he suffered severe

emotional distress. In their motion for summary judgment,

Caterpillar argues that Bennington cannot prove he suffered

any such injury. In his response, Bennington argues his

injuries need not “result in physical injury or the threat of

physical injury.” Holder v. Invaniack, 39 F.Supp.2d 965, 969

(N.D. Ill. 1999); however, Bennington fails to poit to any

facts that would indicate he has suffered any emotional distress

at all. Furthermore, the Court can find no facts on the record to

indicate Bennington has suffered legally cognizable emotional

distress. - As the Seventh Circuit has stated, Bennington

“cannot leave it to this court to scour the record in search of

factual or legal support for this claim.” Colburn v. Trustees of

Indiana Univ., 973 F.2d 581, 593 (7 Cir.) 1992).

Accordingly, Bennington’s argument as to whether he has

suffered severe emotional distress is waived. See Finance

Inventment Co. v, Geberit AG, 165 F.3d 526, 529 (7° Cir.

A -23

| 1998) (perfunctory and undeveloped argument waived).

Therefore, summary judgment is appropriate as to this claim.

CONCLUSION

IT IS THEREFORE ORDERED that Defendant’s

Motion for Summary Judgment (Doc. #35) is GRANTED.

IT IS FURTHER ORDERED that Plaintiff's Motion to

Re-Open Discovery (Doc. #40) is DENIED.

CASE TERMINATED.

ENTERED this 12® day of January, 2001.

/s/ Joe B. McDade

JOE BILLY MCDADE

Chief United States District Judge

29 USCA § 623

(a) Employer practices

It shall be unlawful for an employer--

(1) to fail or refuse to hire or to discharge any individual or

otherwise discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of

employment, because of such individual's age;

(2) to limit, segregate, or classify his employees in any way

which would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely affect his

status as an employee, because of such individual's age; or

(3) to reduce the wage rate of any employee in order to comply

with this chapter.

(b) Employment agency practices

It shall be unlawful for an employment agency to fail or refuse

to refer for employment, or otherwise to discriminate against,

any individual because of such individual's age, or to classify

or refer for employment any individual on the basis of such

individual's age.

(c) Labor organization practices

It shall be unlawful for a labor organization

(1) to exclude or to expel from its membership, or otherwise to

discriminate against, any individual because of his age;

(2) to limit, segregate, or classify its membership, or to classify

or fail or refuse to refer for employment any individual, in any

way which would deprive or tend to deprive any individual of

employment opportunities, or would limit such employment

opportunities or otherwise adversely affect his status as an

employee or as an applicant for employment, because of such

25

’ individual's age;

(3) to cause or attempt to cause an employer to discriminate

against an individual in violation of this section.

(d) Opposition to unlawful practices; participation in

Investigations, proceedings, or litigation |

It shall be unlawful for an employer to discriminate against any

of his employees or applicants for employment, for an

employment agency to discriminate against any individual, or

for a labor organization to discriminate against any member

thereof or applicant for membership, because such individual,

member or applicant for membership has opposed any practice

made unlawful by this section, or because such individual,

member or applicant for membership has made a charge,

testified, assisted, or participated im any manner in an

investigation, proceeding, or litigation under this chapter.

(e) Printing or publication of notice or advertisement indicating

preference, limitation, etc.

It shall be unlawful for an employer, labor organization, or

employment agency to print or publish, or cause to be printed

or published, any notice or advertisement relating to

employment by such an employer or membership in or any

classification or referral for employment by such’ a labor

organization, or relating to any classification or referral for

employment by such an employment agency, indicating any

preference, limitation, specification, or discrimination, based

on age.

(f) Lawful practices; age an occupational qualification; other

reasonable factors; laws of foreign workplace; seniority

system; employee benefit plans; discharge or discipline for

good cause

A~26

occupational qualificatio

operation of the particular business, oF where the

differentiation is based on reasonable factors other than age, OF

where such practices involve an employee in a workplace in a

foreign country, and compliance with such subsections would

cause such employer, or a corporation controlled by such

employer, to violate the laws of the country in which such

workplace is located;

(2) to take any action otherwise prohibited under subsection

(a), (b), (c), or (e) of this section--

(A) to observe the terms of a bona fide seniority system that is

not intended to evade the purposes of this chapter, except that

no such seniority system shall require or permit the involuntary

retirement of any individual specified by section 631(a) of this

title because of the age of such individual; or

(B) to observe the terms of a bona fide employee benefit plan--

(i) where, for ‘each benefit or benefit package, the actual

amount of payment made or cost incurred on behalf of an older

worker is no less than that made or incurred on behalf of a

younger worker, as permissible under

(as in effect on June 22, 1989); or

(ii) that is a voluntary early retirement incentive plan consistent

with the relevant purpose or purposes of this chapter.

employee benefit plan shall require or permit the involuntary

retirement of any individual specified by section 631(a) of this

title, because of the age of such individual. An employer,

f.-27

employment agency, or labor organization acting under

subparagraph (A), or under clause (i) or (ii) of subparagraph

(B), shall have the burden of proving that such actions are

lawful in any civil enforcement proceeding brought under this

chapter; or

(3) to discharge or otherwise discipline an individual for good cause.

(g) Repealed. ,

Dec. 19, 1989, 103 Stat. 2233

(h) Practices of foreign corporations controlled by American —

employers; foreign employers not controlled by American

employers; factors determining control

(1) If an employer controls a corporation whose place of

incorporation is in a foreign country, any practice by such

corporation prohibited under this section shall be presumed to

be such practice by such employer.

(2) The prohibitions of this section shall not apply where the

employer is a foreign person not controlled by an American employer.

(3) For the purpose of this subsection the determination of

whether an employer controls a corporation shall be based

upon the--

(A) interrelation of operations,

(B) common management,

(C) centralized control of labor relations, and

(D) common ownership or financial control,

of the employer and the corporation.

(i) Employee pension benefit plans; cessation or reduction of

benefit accrual or of allocation to employee account;

distribution of benefits after attainment of normal retirement

age; compliance; highly compensated employees

Pe-28

(1) Except as otherwise provided in this subsection, it shall be

unlawful for an employer, an employment agency, a labor

organization, or any combination thereof to establish or

maintain an employee pension benefit plan which requires or

permits-- |

(A) in the case of a defined benefit plan, the cessation of an

employee's benefit accrual, or the reduction of the rate of an

employee's benefit accrual, because of age, or

(B) in the case of a defined contribution plan, the cessation of

allocations to an employee's account, or the reduction of the

rate at which amounts are allocated to an employee's account,

because of age.

(2) Nothing in this section shall be construed to prohibit an

employer, employment agency, or labor organization from

observing any provision of an employee pension benefit plan

to the extent that such provision imposes (without regard to

age) a limitation on the amount of benefits that the plan

provides or a limitation on the number of years of service or

years of participation which are taken into account for

purposes of determining benefit accrual under the plan.

(3) In the case of any employee who, as of the end of any plan

year under a defined benefit plan, has attained normal

retirement age under such plan--

(A) if distribution of benefits under such plan with respect to

such employee has commenced as of the end of such plan year,

then any requirement of this subsection for continued accrual

of benefits under such plan with respect to such employee

during such plan year shall be treated as satisfied to the extent

of the actuarial equivalent of in-service distribution of benefits,

and

(B) if distribution of benefits under such plan with respéct to

such employee has not commenced as of the end of such year

in accordance with section 1056(a)(3) of this title and section

401(a)(14)(C) of Title 26, and the payment of benefits under

h-29

such plan with respect to such employee is not suspended

during such plan year pursuant to section 1053(a)(3)(B) of this

title or section 411(a)(3)(B) of Title 26, then any requirement

of this subsection for continued accrual of benefits under such

plan with respect to such employee during such plan year shall

be treated as satisfied to the extent of any adjustment in the

benefit payable under the plan during such plan year

attributable to the delay in the distribution of benefits after the

attainment of normal retirement age.

The provisions of this paragraph shall apply in accordance with.

regulations of the Secretary of the Treasury. Such regulations

shall provide for the application of the preceding provisions of

this paragraph to all employee pension benefit plans subject to

this subsection and may provide for the application of such

provisions, in the case of any such employee, with respect to

any period of time within a plan year.

(4) Compliance with the requirements of this subsection with

respect to an employee pension benefit plan shall constitute

compliance with the requirements of this section relating to

benefit accrual under such plan.

(5) Paragraph (1) shall not apply with respect to any employee

who is a highly compensated employee (within the meaning of

section 414(q) of Title 26) to the extent provided in regulations

prescribed by the Secretary of the Treasury for purposes of

precluding discrimination in favor of highly compensated

employees within the meaning of subchapter D of chapter 1 of

Title 26.

(6). A plan shall not be treated as failing to meet the

requirements of paragraph (1) solely because the subsidized

portion of any early retirement benefit is disregarded in

determining benefit accruals or it is a plan permitted by

subsection (m) of this section..

(7) Any regulations prescribed by the Secretary of the Treasury

pursuant to clause (v) of section 411(b)(1)(H) of Title 26 and

A-30

subparagraphs (C) and (D) of section 411(b\(2) of Title 26

shall apply with respect to the requirements of this subsection

in the same manner and to the same extent as such regulations

apply with respect to the requirements of such sections

411(b)(1)(H) and 411(b)(2).

(8) A plan shall not be treated as failing to meet the

requirements of this section solely because such plan provides

a normal retirement age described in section 1002(24)(B) of

this title and section 411(a)(8)(B) of Title 26.

(9) For purposes of this subsection--

(A) The terms “employee pension benefit plan", "defined

benefit plan", “defined contribution plan", and "normal

retirement age” have the meanings provided such terms in

section 1002 of this title.

(B) The term "compensation" has the meaning provided by

section 414(s) of Title 26.

(j) Employment as firefighter or law enforcement officer

It shall not be unlawful for an employer which is a State, a

political subdivision of a State, an agency or instrumentality of

a State or a political subdivision of a State, or an interstate

agency to fail or refuse to hire or to discharge any individual

because of such individual's age if such action is taken--

(1) with respect to the employment of an individual as a

firefighter or as a law enforcement officer, the employer has

complied with section 3(d)(2) of the Age Discrimination in

Employment Amendments of 1996 if the individual was

discharged after the date described in such section, and the

individual has attained--

(A) the age of hiring or retirement, respectively, in effect under

applicable State or local law on March 3, 1983; or

(B)(i) if the individual was not hired, the age of hiring in effect

on the date of such failure or refusal to hire under applicable

State or local law enacted after September 30, 1996; or

f- 31

. (ii) if applicable State or local law was enacted after September

30, 1996, and the individual was discharged, the higher of--

(I) the age of retirement in effect on the date of such discharge

under such law; and

(II) age 55; and

(2) pursuant to a bona fide hiring or retirement plan that is not

a subterfuge to evade the purposes of this chapter.

(k) Seniority system or employee benefit plan; compliance

A seniority system or employee benefit plan shall comply with

this chapter regardless of the date of adoption of such system

or plan.

(1) Lawful practices; minimum age as condition of eligibility

for retirement benefits; deductions from severance pay;

reduction of long-term disability benefits

Notwithstanding clause (i) or (ii) of subsection (f)(2)(B) of this

section--

(1) It shall not be a violation of subsection (a), (b), (c), or (€) of

this section solely because--

(A) an employee pension benefit plan (as defined in section

1002(2) of this title) provides for the attainment of a mmimum

age as a condition of eligibility for normal or early renamed

benefits; or

(B) a defined benefit- plan (as defined in section 1002(35) of

this title) provides for--

(i) payments that constitute the subsidized portion of an early

retirement benefit; or

(ii) social security supplements for plan participants that

commence before the age and terminate at the age (specified

by the plan) when participants are eligible to receive reduced

or unreduced old-age insurance benefits under title II of the

Social Security Act ( et seq.), and that do not

f-32

exceed such old-age insurance benefits.

(2)(A) It shall not be a violation of subsection (a), (b), (c), or

(e) of this section solely because following a contingent event

unrelated to age--

(i) the value of any retiree health benefits received by an

individual eligible for an immediate pension;

(ii) the value of any additional pension benefits that are made

available solely as a result of the contingent event unrelated to

age and following which the individual is eligible for not less

than an immediate and unreduced pension; or

(iii) the values described in both clauses (i) and (i);

are deducted from severance pay made available as a result of

the contingent event unrelated to age.

(B) For an individual who receives immediate pension benefits

that are actuarially reduced under subparagraph (A)(i), the

amount of the deduction available pursuant to su

(A)(i) shall be reduced by the same percentage as the reduction

in the pension benefits.

(C) For purposes of this paragraph, severance pay shall include

that portion of supplemental unemployment compensation

benefits (as described in section 501(c)(17) of Title 26) that--

(i) constitutes additional benefits of up to 52 weeks;

(ii) has the primary purpose and effect of continuing benefits

until an individual becomes eligible for an immediate and

unreduced pension; and

(iii) is discontinued once the individual becomes eligible for an

immediate and unreduced pension. ;

(D) For purposes of this paragraph and solely in order to make

the deduction authorized under this paragraph, the term "retiree

health benefits" means benefits provided pursuant to a group

health plan covering retirees, for which (determined as of the

contingent event unrelated to age)--

(i) the package of benefits provided by the employer for the

retirees who are below age 65 is at least comparable to benefits

f-33

provided under title XVIII of the Social Security Act (

et seq.);

(ii) the package of benefits provided by the employer for the

retirees who are age 65 and above is at least comparable to that

offered under a plan that provides a benefit package with one-

fourth the value of benefits provided under title XVIII of such

Act; or ; 7

(iii) the package of benefits provided by the employer is as

described in clauses (i) and (11).

(E)(i) If the obligation of the employer to provide retiree health

benefits is of limited duration, the value for each individual

shall be calculated at a rate of $3,000 per year for benefit years

before age 65, and $750 per year for benefit years beginning at

age 65 and above.

(ii) If the obligation of the employer to provide retiree health

benefits is of unlimited duration, the value for each individual

shall be calculated at a rate of $48,000 for individuals below

age 65, and $24,000 for individuals age 65 and above.

(iii) The values described in clauses (i) and (ii) shall be

calculated based on the age of the individual as of the date of

the contingent event unrelated to age. The values are effective

on October 16, 1990, and shall be adjusted on an annual basis,

- with respect to a contingent event that occurs subsequent to the

first year after October 16, 1990, based on the medical

component of the Consumer Price Index for all-urban

consumers published by the Department of Labor.

(iv) If an individual is required to pay a premium for retiree

health benefits, the value calculated pursuant to this

subparagraph shall be reduced by whatever percentage of the

overall premium the individual is required to pay.

(F) If an employer that has implemented a deduction pursuant

to subparagraph (A) fails to fulfill the obligation described in

subparagraph (E), any aggrieved individual may bring an

action for specific performance of the obligation described in

subparagraph (E). The relief shall be in addition to any other

h-34

remedies provided under Federal or State law.

(3) It shall not be a violation of subsection (a), (b), (c), or (e) of

this section solely because an employer provides a bona fide

employee benefit plan or plans under which long-term

disability benefits received by an individual are reduced by any

pension benefits (other than those attributable to employee

contributions)--

(A) paid to the individual that the individual voluntarily elects

to receive; or

(B) for which an individual who has attained the later of age 62

or normal retirement age is eligible.

(m) Voluntary retirement incentive plans

Notwithstanding subsection (f)(2)(b), it shall not be a violation

of subsection (a), (b), (c), or (e) solely because a plan of an

institution of higher education (as defined in section 1001 of

Title 20) offers employees who are serving under a contract of

unlimited tenure (or similar arrangement providing for

unlimited tenure) supplemental benefits upon voluntary

retirement that are reduced or eliminated on the basis of age, if-

(1) such institution does not implement with respect to such

employees any age-based reduction or cessation of benefits

that are not such supplemental benefits, except as permitted by

other provisions of this chapter;

(2) such supplemental benefits are in addition to any retirement

or severance benefits which have been offered generally to

employees serving under a contract of unlimited tenure (or

similar arrangement providing for unlimited tenure),

independent of any early retirement or exit-incentive plan,

within the preceding 365 days; and |

(3) any employee who attains the minimum age and satisfies

all non-age-based conditions for receiving a benefit under the

plan has an opportunity lasting not less than 180 days to elect

-35

to retire and to receive the maximum benefit that could then be

elected by a younger but otherwise similarly situated

employee, and the plan does not require retirement to occur

sooner than 180 days after such election.

29 USCA § 631

(a) Individuals at least 40 years of age

The prohibition in this chapter shall be limited to individuals

who are at least 40 years of age.

(b) Employees or applicants for employment in Federal

Government

In the case of any personnel action affecting employees or

applicants for employment which is subject to the provisions of

section 633a of this title, the prohibitions established in section

633a of this title shall be limited to individuals who are at least

40 years of age.

(c) Bona fide executives or high policymakers

(1) Nothing in this chapter shall be construed to prohibit

compulsory retirement of any employee who has attained 65

years of age and who, for the 2-year period immediately before

retirement, is employed in a bona fide executive or a high

$44,000.

(2) In applying the retirement benefit test of paragraph (1) of

this subsection, if any such retirement benefit is in a form other

than a straight life annuity (with no ancillary benefits), or if

employees contribute to any such plan or make rollover

contributions, such benefit shall be adjusted in accordance with

Px- 37

regulations prescribed by the Equal Employment Opportunity

Commission, after consultation with the Secretary of the

Treasury, so that the benefit is the equivalent of a straight life

annuity (with no ancillary benefits) under a plan to which

employees do not contribute and under which no rollover

contributions are made.

i. -38

RULE 30.1 SCHEDULING OF DEPOSITIONS

In scheduling any deposition, counsel must make a good faith

effort to coordinate with all opposing counsel the scheduling of

a time that is mutually convenient to all opposing counsel and

parties. The signing and serving of a Notice of Deposition

shall constitute a certification by the attorney signing and

serving the Notice of Deposition that the attorney has complied

A -39

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

JAMES BENNINGTON, __)

Phin, )

vs. Case No. 99 CV 1111

CATERPILLAR, INC., ‘

Defendant.

MOTION T NSIDER

NOW COMES JAMES BENNINGTON, Plaintiff, by

his attorney, WILLIAM M. ANDERSON IV, and in support of

his Motion to Reconsider this Court’s Order and Judgment of

January 12, 2001, states as follows:

I

BACKGROUND

That the within Order of January 12, 2001 contains

several errors in its interpretation of the facts as contained in

the “background” section of said Order in that several key facts

have been either inadvertently disregarded by this Court or are

a disputed fact and this Couri has failed to consider these facts

in the light most favorable to Plaintiff in rendering its decision

on Defendant’s Motion for Summary Judgment, to wit:

1. As stated on page one (1) of this Court’s Order

of January 12, 2001, it is true that Caterpillar, Inc. (heremafter

referred to as “Caterpillar”) hired James Bennington in 1965 as

a machine shop apprentice. This factual background as stated

on page one (1) and two (2) of this Court’s Order of January

12, 2001, however, fails to note that James Bennington

A-40

received a steady stream of favorable reviews, promotions and

advancements ‘during his tenure at Caterpillar. (See

Bennington Caterpillar employee history folder contents from

1988 through 1998, Exhibit “A” of Pl. Mem. in Opposition to

Motion for Summary Judgment and Exhibit “C” of Bennington

Decl. and Holloman Decl.) Said factual background also fails

to reflect that James Bennington never, during his entire

employment history with Caterpillar, received an unfavorable

review until Paul Wroblewski changed the review written by

James Bennington’s immediate supervisor, Jerry Holloman, in

December, 1997. (See Bennington Caterpillar employee

history folder contents from 1988 through 1998, Exhibit “A” of

Plaintiffs Mem. in Opposition to Motion for Summary

Judgiaent and Exhibit “C” of Bennington Decl. and Holloman

Decl.)

ra The Court is correct in its statement that in

1989, James Bennington was transferred from first shift to

second shift to supervise the assembly area, however, the Court

fails to note that the reason for this transfer was to trouble

shoot problems that had arisen on second shift and, further, that

James Bennington’s 1989 employment review credited him for

significant reductions in costs and increases in efficiencies

including praising James Bennington for “past due engines at

the lowest level in the building history” and naming him as a

“prime contributor” to these results. (Bennington -. employee

performance review - 1989, Bennington Caterpillar employee

history folder contents from 1988 through 1998, Exhibit “A” of

Plaintiffs Mem. in Opposition to Motion for Summary

Judgment, Holloman Decl.) |

ie In the first paragraph of page two (2) of the

above referenced Order, the Court states that “In the mid-

1990s, Bennington’s title changed to unit manager. (DEF’s

Stat. 9 18)” In fact, this was not only a title change but a

promotion. .(See September 12, 1995 interoffice memo in

Bennington Caterpillar employee history folder contents from

Adi

1988 through 1998, Exhibit “A” of Plaintiffs Mem in

Opposition to Motion for Summary Judgment) The Court’s

statement of facts is correct in stating that in 1996

Bennington’s position was eliminated and he was transferred to

another area as a trouble shooter to help reduce engine

assembly defects. However, the Court fails to note that James

Bennington received an extremely good year end review for

that trouble shooting job. (See Bennington Caterpillar

employee history folder contents from 1988 through 1998,

Exhibit “A” of Plaintiffs Memorandum in Opposition to

Motion for Summary Judgment)

4 The Court is correct in its statement «that after

James Bennington was transferred to Building DD, Caterpillar

implemented a “Vision, Values, and Teamwork” imitiative

which was designed to bring a team based management

structure to the division where James Bennington worked. The

Court, however, fails to note that the Vision, Values, and

Teamwork initiative came about because of recommendations

of the Crosby team of consultants who where hired by

Caterpillar to help improve the Caterpillar management

structure. (See pages 191 through 194 of Bennington Dep.)

The Court also fails to note that James Bennington was

extremely supportive and active in his support of the Crosby

initiatives and, in fact, was complemented in his year end

review for the year of 1997 by his immediate supervisor, Jerry

Holloman, and was found to have saved Caterpillar Two

Hundred and Forty Thousand Dollars ($240,000.00) through

his implementation of the Crosby Vision, Values, and

Teamwork initiatives. James Bennington was a leader in the

implementation of the Crosby Vision, Values, and Teamwork

initiatives. (See 1997 employee review document No. IDENT

74492 - additional information section at bottom of document

in Bennington Caterpillar employee history folder contents

from 1988 through 1998, Exhibit “A” of Plaintiff's

Px-42

Memorandum in Opposition to Motion for Summary Judgment

and Bennington Decl. ¥ 14)

5. Caterpillar’s position as reflected by the

statements of Paul Wroblewski were that James Bennington

did not support the Vision, Values, and Teamwork initiative,

however, this position is refuted by the statements of James

Bennington, the affidavit of Jerry Holloman, and the written

records of Caterpillar, which state that James Bennington was a

supporter of the Crosby initiative and recognized that James

Bennington saved Caterpillar Two Hundred and Forty

Thousand Dollars ($240,000.00) through his implementation of

these initiatives. (See Holloman Decl., Bennington Dep. and

1997 employee review document No. IDENT 74492 - additional

information section at bottom of document in Bennington

Caterpillar employee history folder contents from 1988 through

1998, Exhibit “A” of Plaintiff's Memorandum in Opposition to

Motion for Summary Judgment)

6. As such, in considering this matter in a Motion

for Summary Judgment, this Court must assume, for the purpose

of the pending motion, that James Bennington was a recognized

active supporter of the above initiatives and that James

Bennington saved the company a substantial amount of money

through the use of these initiatives. Caterpillar’s claim that James

Bennington was not a supporter of these initiatives must be

disregarded for purposes of this motion because of the fact that

said issue is at the very least, in legitimate dispute. Indeed, all

written records and competent testimony from people who

actually supervised James Bennington’s work on a daily basis,

indicates these issues are clearly to be resolved im favor of

Plaintiff, James Bennington. (See Bennington Caterpillar

employee history folder contents from 1988 through 1998,

Exhibit “A” of Plaintiffs Mem. in Opposition to Motion for

Summary Judgment and Holloman Decl.)

7. In the Court’s statement of facts contained in the

first paragraph of page three (3) the Court correctly states that the

h-43

date that Bennington was transferred to the commercial work

area is in dispute by the parties. It would be a more correct

statement of fact to state that sometime after the transition of the

assembly work from Building B to Building DD, the commercial

assembly work area, which was supervised by Charles Gene

Duchardt was recognized to be falling in serious trouble which

would result in failure to meet shipping deadlines that were

coming due. Jerry Holloman, recognizing that a problem existed

in the commercial assembly area, asked James Bennington, as a

trouble shooter, to assume responsibility for that area and to do

what was necessary to fix the problems in the commercial

assembly area. This all took place on or after June 1, 1997. (See

Holloman Decl., 1997 Bennington performance review and

pages 73 through 75 of Bennington Dep.)

8. Caterpillar’s assertion that Bennington was

transferred prior to May of 1997, and thus, may have been

responsible for the area getting in “trouble” is an allegation that is

only supported by the testimony of Paul Wroblewski.

Bennington’s position that Caterpillar intentionally discriminated

against him is supported by the false claims made by Paul

Wroblewski in an attempt to create false reasons for the removal

of Bennington to waste management. Clearly Paul Wroblewski

lied in his deposition when attempting to characterize Bennington

as the problem in the commercial assembly are rather than the

fixer or troubleshooter for this area. (See Bennington Caterpillar

employee history folder contents from 1988 through 1998,

Exhibit “A” of Plaintiffs Mem. in Opposition to Motion for

Summary Judgment, 1997 Employee Review, Holloman Decl.

and ¥ 14 of Wroblewski Decl.) Caterpillar even went so far as to

deceptively claim in Bennington’s 1998 employee review that the

move to “Special Assignment” (waste pare seine was by

“mutual agreement”.

9. As a clearly disputed fact, this dispute, for the

purposes of Motion for Summary Judgment, must be assumed to

be resolved in favor of James Bennington and this Court’s

P,-44

decision should be based upon the assumption that James

Bennington was an excellent employee who was, in fact, being

brought in to correct the problems created by another employee,

rather than Caterpillar’s attempted assertion that James

Bennington caused the problems in the commercial assembly

area. Obviously, Jerry Holloman, the man who gave James

Bennington the job of correcting the problems in the commercial

assembly area would be the man with the most knowledge about

when James Bennington was given the responsibility for this area

and the reason. Jerry Holloman’s testimony as reflected in his

affidavit, clearly shows that Bennington was “the best man

available”. (See page 22 of Holloman Decl.) It is important to

note that Jerry Holloman, in his review of James Bennington’s

performance, stated that “Jim, no one could have done it any

better.” (See ¢ 30 of Holloman Decl.)

10. - At the bottom of page three (3) of this Court’s

decision, the Court states that there is a dispute between James

Bennington and Jerry Holloman regarding the language in the

annual review that Holloman put in said review which stated that

“Eight D teams or FMEA activities should be implemented in his

next year’s plan.” (See 1997 employee review and Bennington

Caterpillar employee history folder contents from 1988 through

1998, Exhibit “A” ) It is clear that this issue is in dispute and,

thus, it must be considered in James Bennington’s favor for

purposes of this motion. As such, this Court must assume that

James Bennington was not criticized by Holloman by this

statement in his annual review. This is consistent with the other

statements made by Holloman in preparing what has been termed

an extremely good review of James Bennington’s performance

for the year 1997, before said annual review received a hatchet

job by Paul Wroblewski who, quite obviously, had no direct

knowledge of what job James Bennington was hired to do or his

performance on that job.

11. This Court must consider all of Paul

Wroblewski’s negative statements to be completely disregarded

Pr-45

in its consideration of this motion because of the fact that all of

these negative statements have been directly controverted by

Caterpillar records, the statements of James Bennington and the

affidavit of Jerry Holloman. (See Bennington Caterpillar

employee history folder contents from 1988 through 1998,

Exhibit “A” of Plaintiffs Mem. in Opposition to Motion for

Summary Judgment, Bennington Decl., Holloman Decl. and

Bennington Dep.) In short, it is a mistake for this Court to

assume that James Bennington was anything other than an

exemplary employee who was not only skilled in his area of

management but was of such a skill level that he could also be

called upon to come into areas where other managers had failed

and turn their failures into successes. As stated by Jerry

Holloman, there was no work or performance related reason for

changing James Bennington’s 1997 annual review. (See ¥ 48 of

Holloman Decl.) This statement by Holloman must be

considered as a fact in consideration of this motion.

12. These facts are also supported by the fact that

Jerry Holloman received a very favorable review for the year

1997. (See ¥ 31 of Holloman Decl.) It is only logical to

conclude that if James Bennington, a subordinate of Jerry

Holloman, had failed seriously in a major area such as the

commercial assembly area, then his supervisor would have

logically shared some of this blame and it would have been

reflected on the supervisor’s annual review. The supervisor,

Jerry Holloman, received a very favorable annual review, thus

further supporting James Bennington’s position in this matter.

(See J 31 of Holloman Decl.) Caterpillar has never refuted the

fact that Jerry Holloman received a favorable annual review for

1997.

13. In the first paragraph of page four (4) of this

Court’s decision, it makes the statement that ‘it is the general

practice of Mossville managers to review performance

evaluations prepared by subordinates. This statement is correct,

however, it is also the general practice of managers at Caterpillar

A-46

to discuss any changes they wish to make in these evaluations

with the author of the performance evaluation prior to making

any changes. (See { 33 of Holloman Decl. and Evans Dep. pages

23 - 24) It is clear from the testimony in this case that Paul

Wroblewski had several weeks to discuss any changes he wished

to make in James Bennington’s review with Jerry Holloman and

never reviewed these items with him. There is no testimony to

the effect that it was impossible for Paul Wroblewski to discuss

these changes before the retirement of Jerry Holloman.

According to the testimony of Jerry Holloman and James

Bennington, Jerry Holloman prepared Bennington’s evaluation

and delivered it to Paul Wroblewski efter execution by

Bennington on December 8, 1997, ({ 30 and 37 of Holloman

Decl.), and Jerry Holloman did not leave Caterpillar employment

until December 19, 1997, approximately ten days after

completion of the Bennington 1997 review. (J 2 and 3 of

Holloman Decl. {October 3, 2000})

14. The Court also fails to note that Caterpillar

departed from normal Caterpillar policy in not reviewing James

Bennington’s annual report with the author of that report. (See |

33 of Holloman Decl., Evans Dep. pages 23 - 24, and pages 7 - 9

of Kamp Dep.) The Court also fails to note that Don Evans

failed to follow Caterpillar policy regarding another elderly

manager that was placed in waste management along with James

Bennington when Don Evans changed the evaluation written by

Mark Spielmann and did a hatchet job on the review of John

Kamp. (See { 19 - 26 of Kamp Dep.) Thus, the facts, as must be

_ assumed by this Court, are that Caterpillar violated its own policy

as to both of these employees who were in a protected class and

both of whom were placed in waste management by Caterpillar,

together.

15. The Court also failed to note the significance of

changing an employee’s review after it had been through the sign

line and placed in the employee’s history folder. Clearly, once a

review has been written and has been signed off by all superiors

A-47

and placed in an employee’s personnel folder, it is wrong to pull

that review out of the employee’s folder and then change it to a

negative review. The fact that this did happen to another

employee who was in a protected class and was one of the people

placed in waste management together with Bennington is a

critical fact which must be considered and not ignored by this

Court as it shows Caterpillar’s improper course of conduct and

Caterpillar’s desperation to create a negative written record on

the employees Caterpillar wished to discriminate against. It is

the crux of Plaintiff's theory that Caterpillar engaged in a course

of conduct toward a group of employees of which Plaintiff was a

member to fraudulently create unfavorable annual reports to

deprive these employees of the protection of the Caterpillar

salary security protection program so that these employees would

be in fear of losing the pensions and other benefits to which many

of these men had worked their <ntire lives to accumulate. Thus,

this Court must consider all evidence which tends to reflect that

Caterpillar was improperly changing these annual reviews of the

men who were placed in waste management.

16. The fact that Caterpillar was willing to bargain

and deal in performance reviews is further evidence of the fact

that Caterpillar was playing games with employee’s annual

performance reviews in order to coerce the employee's

retirement. John Kamp’s 1997 annual employee review was

improperly altered after it had been through the sign line and

placed in his employee personnel history folder from a favorable

review to an unfavorable review which might have robbed him of

his employee protections under the employees salary security

protection program. (See P. 14-28 of Kamp Dep.) Then, when

John Kamp was willing to retire because of his fears that he

might lose his protections, Caterpillar was willing to change the

review back to its original review. This can only lead to the

conclusion that Caterpillar was not changing John Kamp’s

review because said review needed a correction but that

Caterpillar was only changing this review to coerce John

A-48

Kamp’s, and by example, others, retirement. If in fact, John

Kamp’s original review that was sitting in his employee history

folder was inaccurate, why would Caterpillar feel any

compulsion or reason to change that review back to the original

inaccurate review? The only possible answer is that Caterpillar

was willing to change this review back to the original review

because the original review was the accurate review. Clearly, the

only reason these changes were made by Caterpillar were

because Caterpillar was desperate to coerce the retirement of

these elderly employees and was willing to take any improper

actions necessary to accomplish their goals. Caterpillar made a

deal with John Kamp to change his review back to a good review

and give him discretionary monies that he would not have been

given after they changed his review in return for his retirement.

(See pages 14 and pages 35 - 36 of Kamp Dep.)

17. In the first paragraph of page four (4) the Court

states that Caterpillar claims the changes to James Bennington’s

performance review were made because Paul Wroblewski

believed Jerry Holloman’s evaluation did not accurately reflect

James Bennington’s performance. Jerry Holloman states in his

affidavit that he knows of no performance related reason why

James Bennington’s review would have been changed by Paul

Wroblewski. (See ¥ 48 of Holloman Decl.) Thus, this Court is

required to assume, for purposes of this motion, that there was no

performance related reason for changing James Bennington’s job

performance review. This Court is also required to assume that

James Bennington’s assertion is correct that the changes were not

made because of any performance deficits on his part. (PI’s Stat.

{ 39) |

18. Inthe last paragraph contained on page four (4) of

the Court’s decision, the Court states, at length, the negative

items that were placed in James Bennington’s 1997 performance

evaluation by Paul Wroblewski. However, the Court fails to note

that each of these negative items were refuted by James

Bennington’s immediate supervisor, Jerry Holloman, in his 1997

A-49

performance review and in his declaration. (See 1997 employee

review, Bennington Caterpillar employee history folder contents

from 1988 through 1998, Exhibit “A” of Plaintiffs Mem. in

Opposition to Motion for Summary Judgment and { 37 - 41 of

Holloman Decl.) The Court also fails to note that James

Bennington’s extensive annual performance reviews never

contained any negative comments of the type that Paul

Wroblewski placed in the 1997 performance evaluation. Thus,

Paul Wroblewski’s negative comments are totally inconsistent

with all of Benningtons prior years of perforinance reviews at

Caterpillar. (See Bennington Caterpillar employee history folder

contents from 1988 through 1998, Exhibit “A” of Plaintiff's

Mem. in Opposition to Motion for Summary Judgment) In fact,

the Court fails to note that this is the only negative performance

review of James Bennington at Caterpillar and, as already stated,

James Bennington’s immediate supervisor, who received a

favorable review for 1997 and prior years, stated there was no

performance related reason for James Bennington to receive a

negative review. (See ¥ 48 of Holloman Decl.) The Court also

failed to note that the negative comments made by Paul

Wroblewski on James Bennington’s 1997 annual review are

inconsistent with several other comments on this performance

review. (See ¢ 41 of Holloman Decl.) In other words,

Holloman’s original review of James Bennington’s performance

is totally consistent with over thirty (30) years of work and

performance reviews and Paul Wroblewski’s negative comments

are totally inconsistent with thirty (30) years of performance

reviews received by James Bennington and also inconsistent with

other comments in the same 1997 annual performance review.

Once again, all of these disputed matters must be assumed by this

Court to be resolved in favor of James Bennington in the

consideration of the Motion for Summary Judgment.

19. Thus, this Court must assume for purposes of this

motion that Paul Wroblewski intentionally changed James

Bennington’s performance review to a review which did not

A-50

reflect his performance for the year 1997. Once the Court has

made this assumption, the only possible interpretation of this

assumed fact would be that Paul Wroblewski was improperly

changing an employee’s annual evaluation in order to gain

leverage on that elderly employee in order to coerce the

employee’s retirement. Once you consider the changes to the

annual reviews, together with the adverse employment actions

taken against this employee by placing him in waste management

in an empty building with no work to perform and no employees

to supervise and no job or pension security, you have a clear

picture of Caterpillar attempting to discriminate against elderly

employees.

20. The Court is mistaken in its factual analysis

contained in the first paragraph of page five (5) in that the Court

seems to be laboring under the impression that Caterpillar is

stating that Caterpillar eliminated James Bennington’s position

because it wished to eliminate supervisors who are not supportive

of the Vision, Values and Teamwork initiatives. Neither

Caterpillar nor James Bennington asserts that Caterpillar was

eliminating James Bennington’s “position” in order to eliminate

Bennington, the “employee”. James Bennington is well aware

that management decisions periodically have created changes in

the number and manner of responsibilities which will be placed

upon any individual management employee at Caterpillar.

Caterpillar’s claim, as reflected by Paul Wroblewski, is that

James Bennington, as an individual and not James Bennington’s

position, was eliminated because Paul Wroblewski claimed that

James Bennington did not support the Vision, Values and

Teamwork initiatives. (See Supp. to 1997 employee review,

~ Bennington Caterpillar employee history folder contents from

1988 through 1998, Exhibit “A” of Plaintiffs Mem. in

Opposition to Motion for Summary Judgment) Clearly, the

record adequately reflects evidence to the fact that James

Bennington did support the Vision, Values and Teamwork

initiatives, thus, for purposes of this motion, the Court must

Pe- 51

"assume that James Bennington, in fact, did support the Vision,

Values and Teamwork initiatives and, further, that he was not

relieved of responsibility and placed in waste management

because of any failure to be supportive of the Vision, Values and

Teamwork initiatives. (See Supp. to 1997 employee review,

Bennington Caterpillar employee history folder contents from

1988 through 1998, Exhibit “A” of Plaintiffs Mem. in

Opposition to Motion for Summary Judgment, Holloman Decl.

and page 193 - 194 of Bennington Dep.) Clearly, based upon all

of the evidence before this Court contained in the various

affidavits, statements and transcripts, this Court must find that

James Bennington did support the Crosby Vision, Values and

Teamwork initiatives or, at the very least, must find that this issue

is contested and, as such, must be interpreted in favor of James

Bennington for purposes of this motion.

21. The bottom two paragraphs on page five (5) are

basically factually correct, however, this statement of facts fails

to include the facts that James Bennington and the other

employees who were placed im waste management were

extremely fearful and uncertain as to the effect that these changes

would have upon their security with Caterpillar. James

Bennington and the other employee’s transferred to this waste

management area were extremely fearful of losing their

employee salary protections and extremely fearful of losing their

working careers of accrued retirement benefits. (See pages 118 -

121 of Bennington Dep.) They were also publicly humiliated and

shunned by other employees and their negative annual

performance review for 1997 prevented any opportunity for

transfer to another meaningful assignment at Caterpillar (See {

42 - 44 of Holloman Decl., J 6 - 7 of Bennington Decl., page 32 -

33 and 39 of Kamp Dep. and page 118 - 121 of Bennington Dep.)

The statement at the bottom of the middle paragraph on page five

(5) that James Bennington remained at the same grade level is

correct, however, James Bennington did lose benefits in that he

lost his office, he lost his entire work force and subordinate

A-52

employees, he lost all supervisory responsibilities, he lost all

work load, and he lost all job assignments. Thus, while James

Bennington may have not lost payroll benefits, he did lose many

other benefits of his employment.

II

MOTION TO RE-OPEN DISCOVERY

1. This Honorable Court erred in failing to allow

James Bennington to reopen discovery once it was discovered

that there was a conflict in the testimony of two deponents.

James Bennington has shown that this conflict is extremely

relevant to his case. The Court makes a mistake in its statement

in the last paragraph on page seven (7) when it states that it is a

common practice for higher ups to review and alter performance

evaluations. While it is common for higher ups to review

performance evaluations written by an employee’s immediate

supervisor, it is not a common practice and it is not a proper

practice to alter a performance evaluation after it has been

through the sign line and placed in an employee’s personnel

history folder. James Bennington has proven that Caterpillar

engaged in the improper unusual practice of changing the

performance reviews of both John Kamp and James Bennington

after they had been through the sign line. (1997 employee

review, Bennington Caterpillar employee history folder contents

from 1988 through 1998, Exhibit “A” of Plaintiffs Mem. in

Opposition to Motion for Summary Judgment and pages 23 - 29

of Evans Dep.) It was also not a common practice to alter a

performance evaluation without discussion with the supervisory

who authorized the performance review. Both John Kamp’s and

James Bennington’s performance reviews were altered after they

had been through the sign line and without any discussion

whatsoever with the immediate supervisor. (See 1997

employment review, Bennington Caterpillar employee history

folder contents from 1988 through 1998, Exhibit “A” of

A- 53

' Plaintiffs Mem. in Opposition to Motion for Summary

Judgment and pages 23 - 29 of Evans Dep.) Additionally,

Caterpillar was willing to again change John Kamp’s

performance evaluation back to a favorable evaluation and pay

him discretionary bonus money for being a favorable employee

who met product engine performance division goals. (See pages

35 - 36 of Kamp Dep.)

2. If Caterpillar was not attempting to improperly

coerce elderly employees into retirement, then why did

Caterpillar depart from their normal policies and improperly

change performance reviews and then be willing to change these

performance reviews back to favorable reviews and pay

additional money in order to secure the retirement of the

employee? Clearly, the altering of performance evaluations and

the conflict in testimony and possible perjury by Caterpillar

employee, Don Evans, justifies further discovery to determine

what other actions were taken against other elderly employees

who were placed in waste management. (See page 120 of

Bennington Dep. and pages 46 - 47 of Evans Dep.)

3. If, as Plaintiff suspects, other employee’s

performance evaluations were also improperly altered in order to

secure their forced retirement, then this is clearly evidence which

is necessary for Plaintiff to discover and clearly will be relevant

to Plaintiff's case. It would be a mistake for this Court to make

the conclusion that the improper altering of performance

evaluations in order to coerce retirement of elderly employees is

not relevant to this case. It is clear that James Bennington’s

contentions are that Caterpillar embarked upon a scheme to get

rid of elderly management employees. Don Evans admits in his

deposition (pages 23 - 29) that an attempt was being made to

remove management employees in order to lower operating

costs. It is clear that Plaintiff's theory in this case is that

Caterpillar embarked upon an improper course of conduct against

elderly employees to secure the retirement of elderly employees

by.altering their performance evaluations in a manner that would

P-54

take away their employee protections and by publicly humiliating

them by transferring them to an empty work area with no job

responsibility and no employees. Clearly, Plaintiff must be

allowed to explore through discovery whether the improper

actions taken to James Bennington and John Kamp were also

taken the other elderly employees who were placed in waste

management. If James Bennington is to be allowed to develop

substantiation for his claim that Caterpillar was committing age

discrimination. The fact that Plaintiff has discovered proof of

improper manipulation of employee personnel records justifies

re-opening of discovery to search for other similar acts by

Caterpillar against employees in the same protected class.

Ill

AGE DISCRIMINATION CLAIMS

. The Court is correct when it states that the

standard for review of a mottion of this type is that the Court must

view the record and all references drawn from it in the light most

favorable to the non-moving party, in this case, James

Bennington. If a jury could return a verdict for the non-moving

party, then the Motion for Summary Judgment is to be denied.

Clearly, in the within case, a jury could return a verdict for James

Bennington based upon the evidence presently before this Court.

y 3 The Court Iuas stated the four elements necessary

to prove a prima facie case in the last paragraph of page ten (10)

of its decision. The Court has ruled correctly that it is not

contested that Plaintiff is a member of a protected class. It is

unclear as to the Court’s po:sition regarding the second element of

the test regarding whether Plaintiff was performing his job

satisfactorily. Clearly, for the reasons given earlier in this

motion, a reasonable jurist could easily find that James

Bennington performed his jjob satisfactorily. Both his initial 1997

annual performance review and the testimony of his immediate

supervisor are clearly enough evidence to establish this element

A-55

ofa prima facie case. The Court also ruled correctly on the third

element necessary for a prima facie case in finding that a

reasonable jurist could find that James Bennington was subject to

a material adverse employment action. However, the Court erred

in its statement that James Bennington failed to meet the fourth

test for a prima facie case. The test of whether substantially

younger employees were treated more favorably. The employees

who were placed in waste management, including James

Bennington, were aged as follows: James Bennington, D.O.B.

8/7/44; John Kamp, D.O.B. 1/18/41; Jerry Siwicke, D.O.B. 1943.

Mark Dubois was of the same general management levei as

Plaintiff but was treated more favorably and Mark Dubois was

over ten (10) years younger than Bennington, Kamp and Siwicke

along with other younger employees. (See { 13 of Bennington

Decl.) Clearly, elderly management employees were a target of

Caterpillar for forced retirement or discharge as evidenced by the

improper actions taken against them.

3. This Court’s rulings in regard to closing off

discovery before James Bennington has had a reasonable

opportunity to conduct appropriate discovery in this case has

further limited James Bennington’s opportunities to give this

Court further evidence of the age discrepancies between the

employees who are treated favorably and the employees who

were placed in waste management. Further discovery, if allowed

by this Court, will surely substantiate and provide further proof of

the substantial age difference between the employees who were

treated unfavorably by being placed in waste management and

placed in fear of loss of their employment and retirement benefits

and those who were retained in management positions. It is a

mistake to only consider the age of Perry Lubbers and the age of

James Bennington when attempting to discern whether

Caterpillar engaged 1 in a course of conduct to rid itself of more

costly elderly senior employees in favor of cheaper, less senior,

younger employees. In other words, it is necessary to look at the

big picture in order to determine Caterpillar’s discriminatory

A46

intent. The mere fact that they retained a man who is five years

younger than James Bennington does not prove that Caterpillar

had no discriminatory intent against elderly employees. It only

proves that Perry Lubbers was not above Caterpillars arbitrary

cutoff point. It would make more sense to compare James

Bennington with Mark Dubois who is more than ten (10) years

younger than James Bennington, and was also employed as a unit

manager (the same position as James Bennington) in the same

factory building as James Bennington and reporting to the same

treated differently and more favorably. In fact, James

Bennington was treated differently than at least two employees,

one of which was five (5) years younger and the other was ten

(10) years younger than James Bennington. Hence, clearly even

without additional discovery, James Bennington has provided at

comparable, because of the fact that Mark Dubois was a unit

manager in the machine shop and James Bennington was a unit

manager in the assembly area. However, this argument does not

prevail because of the fact that both positions were considered

been for many years. Mark Dubois had only been a unit manager

in the machine shop for less than one year. (See ¥ 13 of

_ Bennington Decl.)

IV

INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS CLAIM

1. This Court committed error in finding that James

Bennington failed to meet his burden in proving a prima facie

case of intentional infliction of emotional distress. Clearly,

James Bennington has established that he has suffered severe

emotional distress in that James Bennington believed his

treatment by Caterpillar to him put him in a POW camp and these

actions “working” on his “mind” and “you get paranoid”. (See

pages 118 - 120 of Bennington Dep. and 116 of Bennington

Decl.) Bennington speaks of employees in waste management

being “scared to death”. These statements are supported by those

of John Kamp. (See pages 32 - 33 of Kamp Dep.)

ya This Court erred in finding that the record

contains no indication that James Bennington has suffered legally

cognizable emotional distress.

3. It is true that James Bennington spent most of his

_ argument in the original Motion for Summary Judgment dealing

with Caterpillar’s claim that Caterpillar did not commit conduct

that was truly extreme and outrageous.

4. It is clear that the members of waste management

who were subjected to the discriminatory action by Caterpillar

were placed under severe emotional distress, including James

Bennington.

a As such, it is clear that this court should not have

granted summary judgment to Defendant on James Bennington’s

claims that Caterpillar violated the age discrimination and

employment act by transferring him to waste management

(Count I) by constructively discharging him (Count II) and by

creating a hostile work environment (Count II).

WHEREFORE, Plaintiff, JAMES BENNINGTON, by

his attorney, WILLIAM M. ANDERSON IV, respectfully prays

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that this Court reconsider its Order and Judgment of January 12,

2001, and deny Defendant’s Motion for Summary Judgment on

all counts and grant Plaintiff's Motion to Re-Open Discovery and

for such other and further relief as this Court deems appropriate.

Respectfully submitted,

WILLLAM M. ANDERSON IV

Attorney for Plaintiff

ANDERSON LAW OFFICES

William M. Anderson IV

625 South Main

Creve Coeur, Illinois 61610

Telephone: (309) 694-6250

fre-59

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

JAMES BENNINGTON,

)

)

Plaintiff,

v ) Case No. 99-1111

)

)

)

)

ORDER

Before the Court is Plaintiffs Motion to Reconsider

(Doc. #54). The facts of this case are set forth in detail in the

Court’s Order of January 12, 2001, and need not be repeated

here. For the reasons that follow, Plaintiffs motion will be

denied.

“Motions for reconsideration serve a limited function: to

correct manifest errors of law or fact or to present newly

discovered evidence.” Caisse Nationale de Credit v. CBI

Industries, 90 F.3d 1264, 1269 (7 Cir. 1996). Furthermore, it is

not appropriate to argue matters that could have been raised in

prior motions or rehash previously rejected arguménts in a

motion to reconsider. See Id. at 1270. A Rule 59(e) motion

should be granted if there exists “a manifest error of law or fact,”

so as to enable “the court to correct its own errors and thus avoid

unnecessary appellate procedures.” Moro v. Shell Oil Co., 91

F.3d 872, 876 (7 Cir. 1996).

Here, Plaintiff asserts thirty-three errors were made by

the Court in its January 12, 2001 Order. The first twenty-one

alleged factual errors relate to the Court granting summary

judgment in favor of Defendant. In its previous Order, the Court

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granted summary judgment because Bennington had failed to

establish a prima facie case of age discrimination since he did not

show that similarly situated employees who were substantially

younger than him were treated more favorably. None of the

factual errors alleged in Plaintiff's current motion would change

this finding. All of the alleged errors deal with Plaintiff's work

history and the circumstances surrounding his transfer, however,

none of these facts show that Plaintiff was unlawfully

discriminated against. Furthermore, none of the alleged factual

errors would correct the defect in Plaintiff s prima facie case: that

he was replaced by someone that was not significantly younger

than himself.

The next errors alleged by Plaintiff relate to his Motion to

Re-open Discovery. The court found that Plaintiff would not be

prejudice if he were not allowed to take additional depositions in

this case. In its present motion, Plaintiff argues that these

additional depositions would allow him to prove that

Caterpillar’s supervisors improperly altered employee

performance evaluations to coerce elderly employees into

retirement. First of all, the Court has already found that it was

common practice for Caterpillar supervisors to alter performance

evaluations. Still; Plaintiff has presented no evidence to suggest

Caterpillar’s motivation in changing performance evaluations

was age related. Furthermore, the Court does not see how further

depositions would result in such evidence. Moreover, the fact

that Bennington was replaced with an employee that was only

five years younger than him, weighs against such a conclusion.

As to this last point, Plaintiff argues that Perry Lubbers

was not the only similarly situated employee and urges the Court

to now consider another employee who was treated more

favorably than Bennington and who was ten years younger.

Furthermore, Plaintiff argues that. the re-opening of discovery

would allow Bennington to show larger age discrepancies

between employees that were treated more ore less favorably.

First of all, this argument could have been presented in Plaintiff's

A-61

summary judgment response, but was not. Therefore, the Court

should not consider it here. Next, Plaintiff's original motion

related to the depositions of two individuals regarding the

alteration of performance evaluations. Now, Plaintiff seems to

argue that unlimited discovery is warranted. Even if this request

had merit, and the Court does not think it does, this request is

certainly not appropriate at this time. Therefore, the Courts finds

that Plaintiff has not been prejudiced by the Court’s order

denying his request to re-open discovery.

Finally, Plaintiff alleges that the Court erred in granting

summary judgment as to his emotional distress claim, however,

Plaintiff does not point to any factual or legal errors in support of

this conclusion. Therefore, the Court’s ruling will stand as to this

claim.

CONCLUSION

IT IS THEREFORE ORDERED that Plaintiff's Motion

to Reconsider (Doc #54) is DENIED.

ENTERED this 31* day of January, 2001.

/ B. Mc

JOE BILLY MCDADE

Chief United States District Judge

A-62

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

JAMES BENNINGTON, _)

Pini, )

vs. Case No. 99-1111

CATERPILLAR, INC., Judge Joe B. McDade

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

The Plaintiff, JAMES BENNINGTON (hereinafter

"Bennington"), by and through his attorney, submits this

memorandum in opposition to the motion for summary judgment

of the Defendant CATERPILLAR, INC. (hereinafter

"Caterpillar”). |

INTRODUCTION

Bennington has filed an Amended Complaint (hereinafter

"Am. Compl") which alleges that Caterpillar violated the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-

634 in various respects. Specifically, Bennington has alleged that

Caterpillar violated the ADEA by transferring him, constructively

discharging him, and subjecting him to a hostile work

environment. (See Am. Compl., Counts I, Il, Ill, respectively.)

Furthermore, Bennington alleged that Caterpillar’s conduct

intentionally inflicted emotional distress in violation of Illinois

common law. . (See id.) In its Motion for Summary Judgment

and Memorandum in Support ["Def.'s Mem."], Caterpillar argues

A-63

that it is entitled to summary judgment on all of the above claims.

Summary judgment is appropriate only when there is no genuine

issue of material fact and the moving party is entitled to a

judgment as a matter of law. Fed. R. Civ. P. 56(c); Rickgauer v.

Martin Marietta Materials, Inc., 55 F. Supp. 2d 899, 903 (C.D.

Ill. 1999). "A genuine issue of material fact exists when ‘there is

sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party." Rickgauer, 55 F. Supp. 2d at 903

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986)). Moreover, the party moving for summary judgment has

the burden of demonstrating the absence of a genuine issue of

material fact. Rickgauer, 55 F. Supp. 2d at 903. In making that

determination, however, the court must view all evidence in the

light most favorable to the party opposing the motion. Id.

Additionally, since employment discrimination cases such as this

one often hinge on questions of intent and credibility, the court

must apply the summary judgment standard with "added vigor."

Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999);

Campbell v. Fasco Indus., Inc., 861 F. Supp. 1385, 1390 (N.D.

Ill. 1994) (ie., favoring plaintiffs view of the facts), aff'd, 67

F.3d 301 (7th Cir. 1995), cert. denied sub nom. Cole v. City of

Milwaukee, Wisconsin, 516 U.S. 1078 (1996). Plaintiff asserts

that, in light of the United States Supreme Court’s statements in

Reeves v. Sanderson Plumbing Products, 120 S.Ct. 2097 (2000)

at page 2105, that the McDonnell Douglas burden shifting frame

work should not apply to ADEA claims. This burden shifting

frame work should not be applied herein, however, the remainder

of this memorandum shall assume, arguendo, that said frame

work applies to the ADEA. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). In light of the foregoing, it is clear that

Caterpillar is not entitled to summary judgment in this case.

h-64

ARGUMENT’

I. CATERPILLAR IS NOT ENTITLED

TO SUMMARY JUDGMENT ON BENNINGTON'S

TRANSFER CLAIM.

A. Bennington Suffered Adverse Employment

Action Within The Meaning Of The ADEA.

In Fortier v. Ameritech Mobile Communications, Inc.,

161 F.3d 1106 (7th Cir. 1998), the Seventh Circuit thoroughly

summarized what constitutes a "materially adverse employment

action”:

Under our precedent, "a materially adverse change in the

terms and conditions of employment must be more disruptive

than a mere imconvemience Or an alteration of job

responsibilities." Crady v. Liberty Nat'l Bank & Trust Co., 993

F.2d 132, 136 (7th Cir. 1993). "A materially adverse change

might be indicated by a termination of employment, a demotion

evidenced by a decrease in wage or salary, a less distinguished

title, a material loss of benefits, significantly diminished material

responsibilities, or other indices that might be unique to a

particular situation." Id. “Not everything that makes an

employee unhappy is an actionable adverse action." Smart v.

Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). However,

adverse job actions can include changes that do not involve

quantifiable losses in pay or benefits. For example, in Collins v.

>The ADEA and Title VII are sufficiently similar so

that cases involving one are applicable to the other. See

United States EEOC v. Metropolitan Educational

Enterprises, Inc., 864 F. Supp. 71, 73 (N.D. Ill. 1994), aff'd,

60 F.3d 1225 (7th Cir. 1995).

A-65

Illinois, 830 F.2d 692, 703-04 (7th Cir. 1987), an adverse job

action was found when an employee was moved to a new

department where her supervisors did not even know what her

job entailed, she lost her office, phone, and business cards, and

she was assigned to a receptionist-type desk. Also, in Dahm v.

Flynn, 60 F.3d 253 (7th Cir. 1994), this court held that

"decreasing some job responsibilities while increasing other

duties can, under limited circumstances, constitute an adverse

employment action" and that "a dramatic downward shift in skill

level required to perform job responsibilities can rise to the level

of an adverse employment action." Id. at 257, 258: Similarly,

terminating supervisory authority over other employees could

constitute an adverse employment action. See id. at 258-59.

Id. at 1111-12 n.7 (emphasis added). Evidently, the

Seventh Circuit has broadly defined adverse employment action.

Bibbs v. Board of Trustees of Univ. of Illinois, 9 F. Supp. 2d 964,

971 (N_D. Ill. 1998), aff'd, 191 F.3d 455 (7th Cir. 1999).

It has been clearly established that even employment

actions short of outright termination are actionable under the

ADEA. See Fortier (collecting cases). Consequently, an intra-

company transfer may constitute an adverse employment action.

See, e.g., Flaherty v. Gas Research Instit., 31 F.3d 451, 456-57

(7th Cir. 1994) ("an employer does not insulate itself from

liability for discrimination simply by offering a transfer at the

same salary and benefits"); McCabe v. Sharrett, 12 F.3d 1558

1564 (11th Cir. 1994) (fewer responsibilities, more menial tasks,

and lesser opportunity for advancement constitutes adverse

employment action) (cited with approval in Flaherty, 31 F.3d at

457); see also Mohr v. Chicago Sch. Reform Bd. of Trustees, 99

F. Supp. 2d 934, 938 (N.D. Ill. 2000) (“It is adverse employment

action to be reassigned from the status of a regular teacher . . . to

that of a substitute who must go sometimes to several schools a

day and teach out of her area; or even to be deprived of the

responsible position of department chairperson. ws *

In the instant case, Bennington was transferred from his

position as Unit Manager in the Assembly area in Building DD,

after more than 30 years of service with Caterpillar, to what was

Bennington's employment at Caterpillar); Bennington Decl. { 1

(32 years of service); Bennington Dep. Ex. 1 (Unit Manager);

Bennington Dep. at 77-84 (Bennington assigned to "Special

Projects").) As discussed in more detail below, infra at 5-6,

Bennington's transfer from Unit Manager to the "Special Projects

Group" undoubtedly involved "a dramatic downward shift" in

skill level and responsibilities. See Dahm v. Flynn, 60 F.3d 253,

258 (7th Cir. 1994) (quoted in Fortier, 161 F.3d at 1112 n.7).

Caterpillar, however, suggests at least three reasons why

Bennington's transfer does not constitute adverse employment

action as a matter of law. Upon closer examination, however,

none of its arguments suffice. Initially, Caterpillar relies on the

fact that adverse employment action is often associated with

some form of "direct economic harm." (See Def.'s Mem. at 2.)

Financial detriment, however, is not the only indicator of adverse

employment action. See Fortier, 161 F.3d at 1112 n.7 (and cases

cited); McKenzie v. Illinois Dep't of Transp., 92 F.3d 473, 479

(7th Cir. 1996) ("harassment need not be linked to an economic

necessarily suggest that he did not suffer adverse employment

action.

Secondly, Caterpillar claims to have given Bennington a

mere "temporary assignment in the Special Projects Group."

(See Def.'s Mem. at 3.) First of all, there was no indication that

Bennington's alleged reassignment was only "temporary." (See

Bennington Dep. at 218:10-19.) Furthermore, the alleged

"Special Projects Group" was merely: the official name for what

was commonly referred to as "waste management.” (Bennington

Dep. at 100-04 (Caterpillar Vice-President Dan Murphy used

h-67

term "waste management"), 104:21 (same); 106:3 (same).) The

term "waste management" was used to describe when Caterpillar

employees "moved into a vacated building or empty work area,

placed in there and given no assignments." (See Bennington

Dep. at 108:1-3.) Although the "higher-ups” did not like that

term, it was commonly used and understood by Caterpillar

employees. (Bennington Dep. at 108:4-7.) Moreover, that was

exactly what happened to Bennington. (See generally

Bennington Dep. at 79-82 (Bennington suddenly told to clear out

desk and report to vacant building and given no assignments).)

Rather than being assigned "special projects,” as the official title

implies, or even being assigned any in-house projects,

Bennington was told to look for other work himself. (Bennington

Dep. at 127:2-17.) Clearly, the title "Special Projects Group” is

merely a polite term for what is in reality a dumping ground for

unwanted employees.

Lastly, Caterpillar asserts that while in the "Special

Projects Group,” Bennington was afforded computer and other 7

training to further improve his skills and opportunities for other

jobs. (Def.'s Mem. at 3.) As an initial matter, this very argument

implicitly concedes that the Special Projects Group was intended

to transition current employees out of the company. That fact

- notwithstanding, Bennington was not "provided" training, but

rather took it upon himself to take a Windows self-tutorial merely

because he was so bored and tired of doing nothing for eight

hours a day. (See generally Bennington Dep. at 141-42.) In any

case, a mere introduction to Windows did not really qualify him

for anything for which he was not already qualified. (See

Bennington Dep. at 142-43.)

In sum, Bennington has provided ample evidence to

support his allegation that his transfer constituted "adverse

employment action" within the meaning of the ADEA. At best,

Caterpillar has demonstrated that Bennington's claim is based on

inference and credibility determinations. Even assuming,

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arguendo, that that is correct, summary judgment is still not

appropriate. See Pitasi, 184 F.3d at 714.

B. Bennington Has Established Age

Discrimination Through The Indirect Method Of Proof.

In order to succeed on his ADEA claim, Bennington must

prove that age motivated Caterpillar’s transfer decision. Reeves v.

Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2105 (2000).

One of the accepted ways to establish such intentional

discrimination in violation of the ADEA is the indirect method of

proof which follows the burden-shifting analysis established in

McDonnell Douglas

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