Opinion
Cause No. 1:01-CV-79.
March 7, 2002
MEMORANDUM OF DECISION AND ORDER
On February 13, 2001, plaintiff Michael C. Boetjer (hereinafter "Boetjer") filed a complaint against his former employer, The Budd Company (hereinafter "Budd"). Boetjer's complaint alleges discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 626(b) and (c) (hereinafter "ADEA") as well as violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (hereinafter "FLSA"). Boetjer contends he was unlawfully fired based on his age. Additionally, Boetjer alleges that Budd failed to pay him overtime compensation as required by the FLSA.
On November 1, 2001, Budd moved for summary judgment on all of Boetjer's claims. Boetjer filed his response, pro se, on February 11, 2002, to which Budd replied on February 26, 2002. For the reasons set forth herein, Budd's motion for summary judgment will be GRANTED.
FACTUAL BACKGROUND
I. Boetjer's Background
Prior to his employment with Budd, Boetjer had served as a Captain in the United States Army, where he had approximately 72 people under his command. (Boetjer Dep. at 34). In addition, Boetjer had obtained a master's degree in "supervision" from Indiana University Purdue University — Fort Wayne. (Boetjer Dep. at 60). Boetjer had also held supervisory and managerial positions at ITT Aerospace, Conner Rubber Technologies, GenCorp and Seyfert's. (Boetjer Dep. at 38-39, 46, 49, 55).
In this Order, the Court refers to the depositions of Michael Boetjer and Gary Younghans as "Boetjer Dep." and "Younghans Dep.," respectively. The affidavit of Terry Hussey is referred to as "Hussey Aff."
II. Boetjer's Employment with Budd
Boetjer worked as a contractor for Budd for approximately two months in 1995 and again in March or April of 1998. (Boetjer Dep. at 27). Thereafter, Boetjer was directly hired at Budd in May or June of 1998. Budd operates a unionized facility in Kendallville, Indiana, which manufactures fiberglass hoods and panels for automobiles. The plant employs approximately 400 employees. (Boetjer Dep. at 127). When Boetjer started to work for Budd as a direct hire, he was 44 years old. (Boetjer Dep. at 182). His base salary was approximately $45,000.00. (Boetjer Dep. at 126). This meant that no matter how many hours Boetjer worked in any given week at Budd, he got paid at least his weekly salary. (Boetjer Dep. at 192).
During his tenure at Budd, Boetjer was a 3rd shift "Group Leader." As a "Group Leader," Boetjer supervised production in the "Ford Bonding Area," and oversaw approximately 15 to 18 employees. (Hussey Aff., ¶ 4; Boetjer Dep. at 72, 74, 165). He was also responsible for completing incident reports for his employees, recommending discipline, performing probationary performance evaluations, and approving vacation time for his employees. (Boetjer Dep. at 145, 148-50, 155-56, 162). During his employment at Budd, Boetjer identified himself, in e-mail messages, as the "Ford Bond Supervisor" and a member of "Production Management." (Boetjer Dep. at 165).
Boetjer alleges that he set production records in his department and that he broke "all production records established in the history of the company." (Boetjer Dep. at 69, 175-76). On several occasions, Kory Kleeburg (hereinafter "Kleeburg"), Boetjer's supervisor, recognized Boetjer for the leadership he demonstrated in the bonding area and considered Boetjer "one of the top five supervisors" in the plant. (Boetjer Dep. at 77 and 83).
Boetjer alleges that in August or September of 2000, Greg Evans (hereinafter "Evans"), an Operations Manager at Budd, told a group "No one is close to retirement except Mikey." (Boetjer Dep. at 181). The other Group Leaders were ages 45, 48, 28, and 32.
III. Alleged Harassment
On August 10, 2000, Amanda Fletcher-Pearson (hereinafter "Fletcher-Pearson"), a former Budd employee, filed a Charge of Discrimination with the EEOC. (Boetjer Dep. Ex. 26). In her Charge, Fletcher-Pearson alleged that Boetjer had "rubbed the front of his body against the back of [her] body in an attempt to create full body contact." Fletcher-Pearson also claimed that Boetjer told her "he'd make sure [she] would get hired as a full-time benefit Budd employee if she would sleep with him." (Boetjer Dep. Ex. 26). Budd received the Charge on August 28, 2000. (Hussey Aff. ¶ 11).
After receiving the Charge, Budd commenced an investigation into Fletcher-Pearson's sexual harassment allegations against Boetjer. (Younghans Dep. at 21). Gary Younghans (hereinafter "Younghans"), Budd's Human Resources Manager, and Terry Hussey (hereinafter "Hussey"), the Human Resources Divisional Manager for Budd's Plastics Division, were responsible for investigating the Charge. In the course of their investigation, Younghans and Hussey uncovered several other complaints against Boetjer from Fletcher-Pearson and others. (Younghans Dep. at 23, 24; Hussey Aff. ¶ 7. Ex. A). These other complaints included allegations that Boetjer had engaged in sexually harassing, racially harassing, and threatening behavior. (Hussey Aff. ¶ 7, Ex. A). For example, Jill McFarland reported that Boetjer had told her he put a prettier girl in an easier job because he could "fuck her." (Younghans Dep. Ex. 19). Another female temporary employee, Michelle Luckadoo, told her supervisor that she felt uncomfortable working with Boetjer and felt he was always hitting on her. (Younghans Dep. Ex. 14). A male employee named Scott Woods complained to the Union that Boetjer had "threaten[ed] to kick his ass" if he did not start doing as he was told. (Younghans Dep. Ex. 12, 13). Woods also reported that Boetjer had called him "bitch." (Id.)
A group consisting of Younghans, Hussey, and Linda Bayly (hereinafter "Bayly"), Budd's Corporate Personnel Manager, made the decision to discharge Boetjer. (Younghans Dep. at 20). Younghans was 44 when Boetjer's employment was terminated (Younghans Dep. at 64); Hussey was 49 years old at the time Boetjer was fired (Hussey Aff. ¶¶ 3, 4); Bayly was 57 years old when Boetjer was dismissed (Hussey Aff. ¶ 9). Boetjer was terminated on September 15, 2000. At Hussey's direction, Younghans told Boetjer that he was being terminated for "job performance" (Boetjer Dep. at 66), and conduct. (Younghans Dep. at 19).
IV. FLSA Claim
After his employment with Budd had been terminated, Boetjer filed a complaint with the United States Department of Labor alleging that Budd had failed to appropriately pay him overtime. (Boetjer Dep. 175, Ex. 25). As part of his complaint, Boetjer alleged that Budd improperly categorized him as an exempt employee and owed him overtime. In approximately December of 2000, the Department of Labor concluded that Boetjer did not have a valid claim for unpaid overtime. (Boetjer Dep. at 179, Ex. 22). Shortly thereafter, Boetjer filed the instant action in this Court.
APPLICABLE STANDARD
"Summary judgment is proper only if `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1031 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(c)). While the moving party "always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record, if any, which it believes demonstrate the absence of a [genuine issue of] material fact, there is nothing in Rule 56 that requires a moving party to negate an essential element of an opponent's claim for which the opponent will bear the ultimate burden at trial." Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 3178 (1986)). Rather, the standard for granting summary judgment requires the district court to grant summary judgment if the record before us "could not lead a rational trier of fact to find for the non-moving party." McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
The burden is therefore on the non-movant to set forth "specific facts showing that there is a genuine issue for trial." Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(e)). "In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Debs v. Northeastern Illinois Univ., 153 F.3d 390, 394 (7th Cir. 1998). Substantive law determines which facts are "material"; that is, those facts which might affect the outcome of the suit under the governing law. See McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 299 (7th Cir. 1996). Consequently, a dispute over irrelevant or unnecessary facts does not preclude summary judgment. See Hardin v. S.C. Johnson Sons, Inc., 167 F.3d 340, 344 (7th Cir. 1999).
The non-moving party may not rest on the allegations of the pleadings in opposing a motion for summary judgment. See Crim v. Bd. of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998). Rather, the non-moving party must produce some evidence sufficient to show that a genuine issue of material fact exists. "Furthermore, a `party needs more than a scintilla of evidence . . . to defeat summary judgment.'" Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998) (quoting Senner v. Northcentral Technical College, 113 F.3d 750, 757 (7th Cir. 1997)). Thus, a summary judgment determination is essentially an inquiry as to whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.
DISCUSSION
I. Age Discrimination Claim
Boetjer first alleges that the termination of his employment at Budd amounted to discrimination on the basis of his age. The Seventh Circuit has stated that to survive a motion for summary judgment, an ADEA plaintiff need not produce the equivalent of an admission of guilt by the defendant. Rather, the plaintiff can raise an inference of discrimination either by putting in enough evidence, whether direct or circumstantial, to raise a genuine issue whether employer has a discriminatory motivation in carrying out the challenged employment action or by using the McDonnell Douglas burden-shifting framework. See Kariotis v. Navistar International Transportation Corp., 131 F.3d 672, 676 (7th Cir. 1997).
Here, the only evidence that might be construed as direct evidence of discrimination is Evans' comment that Boetjer was the only Group Leader close to retirement age. However, in the Seventh Circuit, statements made by persons who had no part in the decision to discharge the plaintiff do not constitute direct evidence of discrimination. See Oxman v. WLS-TV, 12 F.3d 652, 660 (7th Cir. 1993) (finding that comment by assistant news director was not evidence of discrimination when assistant news director was not the final decision maker regarding plaintiff's termination); McCarthy v. Kemper Life Insurance Companies, 924 F.2d 683, 687 (7th Cir. 1991) (finding no direct evidence of racially motivated discharge where racial slurs were not made by decision makers). Here, Budd contends that Younghans, Hussey, and Bayly made the decision to terminate Boetjer's employment. Boetjer has not submitted any evidence showing that Evans was part of the decision-making group. Accordingly, Evans' alleged statement is not direct evidence of discrimination.
Boetjer fares no better under the McDonnell-Douglas burden-shifting analysis. 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 Bennington v. Caterpillar, Inc., 275 F.3d 654, 659 (7th Cir. 2001). Should Boetjer be able to make a prima facie showing, Budd must articulate a legitimate, nondiscriminatory reason for the adverse employment action. See Contreras v. Suncast Corp., 237 F.3d 756, 760 (7th Cir. 2001). Once Budd has proffered such a legitimate reason, the burden shifts back to Boetjer to prove by a preponderance of the evidence that Budd's explanation is merely "pretext." See id.
Here, Budd argues that Fletcher-Pearson's sexual harassment claim is both evidence that Boetjer was not meeting Budd's legitimate job-related expectations and a legitimate nondiscriminatory reason for discharging Boetjer. Thus, there is significant overlap in the analysis of the prima facie elements and the pretext question. In such circumstances, the Seventh Circuit has found it appropriate to "eschew a mechanistic application of McDonnell Douglas . . . and proceed to [the pretext inquiry]." Fuka v. Thomson Consumer Electronics, 82 F.3d 1397 (7th Cir. 1996). Thus, the Court turns to the question of whether Budd's assertion that it dismissed Boetjer on the basis of Fletcher-Pearson's and others' harassment charges was pretextual.
Aside from the second prong of the McDonnell Douglas analysis — whether Boetjer was meeting Budd's reasonable expectations — it is not clear that Boetjer has satisfied the fourth prong of the prima facie test. Budd asserts that the employee who replaced Boetjer, Summer Anderson, although substantially younger, was not similarly situated to Boetjer because she had no harassment complaints against her. For this reason, it is likely that Boetjer has not even made out a prima facie case against Budd.
According to the Seventh Circuit, "[a] plaintiff can prove pretext either by presenting direct evidence that a discriminatory reason motivated the employer's decision or by presenting evidence that the employer's proffered reason is unworthy of credence, thus raising the inference that the real reason is discriminatory." Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1310 (7th Cir. 1997). The question is not whether the employer was mistaken in its judgment, but rather, whether the employer honestly believed its proffered reason for discharge. Id. Here,
Boetjer has produced no evidence tending to show that Budd did not honestly believe Boetjer had committed various acts of harassment. Boetjer does argue that he could not have harassed Fletcher-Pearson because she worked during the second shift while Boetjer worked the third shift in a totally different area of the plant. However, as noted above, the pretext question does not ask whether Budd was mistaken in its judgment, only whether Budd honestly believed its proffered reason for discharge. Here, Budd has produced several copies of written complaints of harassment against Boetjer. (Younghans Dep. Exs. 8-20). After reviewing these written complaints, the Court is satisfied that Budd had the requisite good faith, reasonably-held belief that Boetjer had violated Budd's anti-harassment policy. As a result, summary judgment on the ADEA claim will be granted.
As a side note, Boetjer has claimed that he worked a significant amount of overtime at Budd. Therefore, it is not impossible that he would have come into contact with an employee who was regularly scheduled for the second shift.
II. FLSA Claim
Boetjer's second claim is that Budd failed to pay him overtime as required by the FLSA. The FLSA states, in relevant part:
[N]o employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.29 U.S.C. § 207(a)(1). However, the FLSA overtime provisions, as quoted above, do not apply to "any employee employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). The employer has the burden to show that the employee fits within this exemption to the overtime pay requirements of the statute. See Piscione v. Ernst Young, LLP, 171 F.3d 527, 533 (7th Cir. 1999).
United States Department of Labor regulations provide a detailed interpretation of the statutory phrase "employee employed in a bona fide executive . . . capacity." See 29 C.F.R. § 541.1-541.119. These regulations have the "force and effect of law." See Haywood v. North Am. Van Lines, Inc., 121 F.3d 1066, 1069 (7th Cir. 1997).
29 C.F.R. § 541.1 sets forth a multi-factor "long test" for assessing whether a particular employee qualifies for the executive exemption. But for employees who are compensated at a rate of $250.00 or more per week, 29 C.F.R. § 541.119 provides a "short test" with fewer requirements. Under the short test, Boetjer is considered an exempt executive employee not entitled to overtime pay if (1) he was compensated on a salary basis at a rate of $250.00 or more per week, (2) his primary duty consisted of the management of the enterprise in which he was employed or of a customarily recognized department or subdivision thereof, and (3) his duties included the customary and regular direction of two or more employees. See Baudin v. Courtesy Litho Arts, Inc., 24 F. Supp.2d 887, 889-890 (N.D.Ill. 1998). The Court will now address each of these requirements in turn.
First, Budd must prove the threshold factor — that Boetjer was compensated on a salary basis at $250.00 or more per week — for the short test to apply. An employee is considered to be paid "on a salary basis" if the following conditions are satisfied:
Under [the employee's] employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount (of $250.00 or more) constituting all or part of his compensation which amount is not subject to reduction because of variations in the quality or quantity of work performed. Subject to [certain] exceptions . . . the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked.
29 C.F.R. § 541.118(a). Here, Boetjer satisfies the "salary test." In his deposition, Boetjer admitted that he was paid more than $250.00 per week and that he was paid his full salary for any week in which he performed any work.
Boetjer also satisfies the second requirement of the short test — that his primary duty was the management of a customarily recognized department or subdivision thereof. Certainly Boetjer was primarily responsible for managing the "Ford Bonding Area." He supervised production in that area and was responsible for completing incident reports for his employees, recommending discipline, performing probationary performance evaluations, and approving vacation time for his employees. Boetjer identified himself, in e-mail messages, as the "Ford Bond Supervisor" and a member of "Production Management." Accordingly, the Court is satisfied that Boetjer meets the second requirement of the short test.
Finally, it is clear that Boetjer's duties included the regular direction of two or more employees. Boetjer admitted in his deposition that he oversaw approximately 15 to 18 employees in his role as a Group Leader for the Ford Bonding Area. As a result, the Court concludes that Boetjer has met the requirements of the short test and that he qualifies as an exempt executive employee not entitled to overtime pay.
Boetjer has not put forth any evidence showing a genuine issue of material fact as to his status as an exempt executive employee. Rather, Boetjer has submitted copies of two "Overtime Approval Forms" from his tenure at Budd. On one of these forms, he is categorized as "Salary Unaffiliated" and on the other form, he is categorized as "Salary Management." Although neither of the parties explains in any detail what these terms mean, it appears from the forms that the categories determine what duties Boetjer would be performing in his overtime and whether he would receive "time and one-half" or "straight time" compensation. In any event, all these forms show is that Boetjer did, in fact, receive time and one-half compensation for at least some of the overtime he worked and straight time compensation for other overtime hours. That Boetjer only received "straight time" compensation for some overtime hours he worked does not create a right of action when, as discussed above, Boetjer was not statutorily entitled to any overtime compensation whatsoever. Summary judgment on the FLSA claim will be granted.
CONCLUSION
Based on the foregoing, Budd's Motion for Summary Judgment is hereby GRANTED. The Clerk is DIRECTED to enter judgment on behalf of the defendant.
SO ORDERED.