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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 819

## Text

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

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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

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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.)

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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

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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

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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°

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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.

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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

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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

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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.

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| 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

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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

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(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

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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

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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 a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1268%3A1. Public record. Not legal advice.