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CHERCHI v. MOBIL OIL CORP.

May 18, 1988

LAWRENCE CHERCHI, Plaintiff,
v.
MOBIL OIL CORPORATION, Defendant



The opinion of the court was delivered by: LECHNER

 LECHNER, UNITED STATES DISTRICT JUDGE.

 This is an action alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Now before the court is defendant's motion for summary judgment.

 Facts

 The plaintiff in this action is Lawrence P. Cherchi ("Cherchi"). Plaintiff was born on October 17, 1943; he is now 44 years old. He currently resides in New Jersey. Cherchi is not married; he has no children. See Plaintiff's Answers to Defendant's Interrogatories ("Defendant's Interr."), No. 1; Cherchi Dep. at 4, 7.

 The defendant is Mobil Oil Corporation ("Mobil"). Cherchi was employed by Mobil from 1967 until 1985 in various positions concerning special product sales, which involves the sale of refinery by-products to commercial accounts. See Defendant's Interr. Nos. 5-6; Cherchi Dep. at 24-30. Cherchi's career with Mobil began in late 1966 when Cherchi applied in New York City for a position with Mobil. He was offered a position as a marketing trainee in Baltimore, Maryland, which he accepted on January 3, 1967. Cherchi moved to Baltimore within two to three months. See Defendant's Interr. No. 4. Between January 3, 1967 and July 1, 1985 Cherchi held the following positions with Mobil: Position Dates Location Marketing Trainee Jan. 1967 - Jan. 1968 Baltimore Junior Marketing Jan. 1968 - Jan. 1970 Baltimore Representative Marketing Feb. 1970 - Jan. 1976 Baltimore Representative Senior Marketing Feb. 1976 - Feb. 1979 Baltimore Representative Office Manager Feb. 1979 - Dec. 1982 Eastchester, N.Y. Area Manager Jan. 1983 - Jul. 1985 Worked out of his home in Leonia, N.J.

 See id. No. 5; see also Defendant's Moving Brief at 4.

 Cherchi's last position with Mobil was as Area Manager for the Northeast from January, 1983 to July, 1985. In 1983 the Special Products Division was formed having an area manager in each of three nationwide key marketing areas: Northeast, Great Lakes, and Southwest/Southeast. According to Mobil, there were two objectives for this organization in 1983: (1) to concentrate and increase direct day to day supervision in key markets, and (2) to allow transfer of routine in-plant technical support work load then being provided by the Chief Engineer to the Area Managers. See 6/9/85 Letter from Theodore Ziegler, Special Products Division Manager ("Ziegler") to Cherchi (attached to Defendant's Answers to Plaintiff's Interrogatories) ("Plaintiff's Interr."); Ziegler Aff., para. 3.

 From February 1, 1983 to June 29, 1985 the three area managers were Cherchi in the Northeast, Michael Vanderplow ("Vanderplow") in the Midwest, and Russ Griffith ("Griffith") in the Southwest. *fn1" The three area managers reported to Ziegler, who in turn reported to K.R. Fernlund ("Fernlund"), the Sales Department Manager. See Plaintiff's Interr. (attached chart demonstrating chain of command from 2/1/83 to 6/29/85).

 In January or February of 1985, it was determined day to day supervision in the key markets and the routine in-plant technical support could adequately be handled by two area managers. Thus, Ziegler made a decision as to which of the area manager positions to eliminate, choosing to eliminate Cherchi's position. Ziegler Aff., para. 3.

 Ziegler prepared evaluations of the performance of the three managers some time in January or February of 1985. See Ziegler Aff., Ex. A (evaluations are dated January (no date), 1985 and February 19, 1985). According to the evaluations, Griffith, who at the time was forty, achieved the best performance; he received an overall rating of CE- (clearly exceeds job requirements). Id. Cherchi, who was forty-one, and Vanderplow, who was thirty-four, both received overall ratings of MR (meets all job requirements and all expectations). The evaluations of Cherchi and Vanderplow differed with respect to the specific comments given, and with respect to their ratings in certain areas: Vanderplow received higher ratings in Area Administration (MR versus MR-), Administration (MR versus MR), Leadership/Development of Others (MR versus MR-), and Cherchi received higher ratings in Problem Solving/Decision Making (MR versus MR) and Knowledge (MR versus MR). See id.

 In choosing to eliminate Cherchi's area manager position, Ziegler assertedly considered two factors: (1) Cherchi had the weakest job evaluation as area manager, and (2) Cherchi had covered the Baltimore territory for thirteen years where there was a vacancy in the position of Territory Manager. Id., para. 4. As noted by plaintiff, Mobil does not indicate there was any geographical or market related reason for choosing to eliminate the Northeast position instead of one of the other two positions.

 In early June, 1985, Cherchi was informed at a personal meeting with Ziegler and Fernlund of the decision to eliminate Cherchi's position and reassign him, effective July 1, 1985, to the Baltimore territory. See Cherchi Dep. at 33; Ziegler Aff., para. 5. Cherchi was told there would be no salary reduction and that his relocation costs would be paid by Mobil. Ziegler Aff., para. 5; see also 6/9/85 Letter from Ziegler to Cherchi (attached to Plaintiff's Interrs.). Apparently Cherchi expressed his unwillingness to relocate to Baltimore and asked about the possibility of receiving a termination allowance instead of being reassigned. *fn2"

 The reasons why Cherchi was unwilling to relocate were that: his mother was hospitalized with kidney problems; the woman with whom he was living and her daughter were unwilling to move, in part because the daughter was about to enter a nine month secretarial course for which the tuition had already been paid; much of his family resided in the greater New York area; he believed he would lose money if he sold his house in New Jersey; and he was disappointed because he perceived the Territory Manager position in Baltimore as a lesser position even though the salary was the same. See Cherchi Dep. at 11-12, 17, 18-19, 22-23, 35, 55. Although Cherchi now argues he was also unwilling to move because he was not given enough time to make the transition, he apparently did not request additional time nor did he indicate he would be willing to accept the position at some later time. See id. at 51.

 By letter, dated July 1, 1985, Ziegler confirmed Cherchi's unwillingness to accept his new assignment, and notified Cherchi of his separation from Mobil effective June 29, 1985. By letter dated July 3, 1985, Mobil notified Cherchi of his benefits upon termination. On July 8, 1985, Cherchi responded indicating his interest in receiving employee benefits provided in cases of involuntary separation. By letter, dated July 15, 1985, Ziegler responded to Cherchi's inquiry. Ziegler explained that Cherchi's refusal to accept his position in Baltimore was viewed as a resignation; thus, Cherchi was not eligible for the Mobil Termination Allowance. However, Ziegler indicated the Baltimore position was still available for Cherchi; Ziegler asked Cherchi to reconsider his rejection of the position and again asked Cherchi to accept the Baltimore position. See Letters, dated 7/1/85, 7/3/85, 7/8/85 and 7/15/85 (attached to Plaintiff's Interrs.). Cherchi declined the second offer of the Baltimore position.

 Cherchi continued to seek the termination allowance from Mobil. On October 9, 1985, he wrote to the Benefit Plans Administration Department, and asked for a review of the determination that he was not eligible for the termination allowance. See Letter, dated 10/9/85 (attached to Plaintiff's Interrs.). Apparently Cherchi's efforts to obtain the termination allowance were unsuccessful.

 On December 9, 1985, Cherchi filed a charge of age discrimination with the Equal Employment Opportunity Commission. Cherchi alleged he had been terminated because of his age and that the reorganization of the Special Products Department was a pretext for age discrimination. See EEOC Charge (attached to Defendant's Interr. No. 16.) The EEOC did not take favorable action on Cherchi's age discrimination charge. Cherchi Dep. at 64.

 Cherchi instituted this action on June 25, 1987. The complaint contains two counts. The First Count alleges plaintiff was discharged on or about July 1, 1985, "without prior written notice or opportunity," after he had complained about job assignments and relocations which were forced upon him in order to obtain his involuntary termination. The complaint alleges Cherchi was ultimately replaced by less qualified employees who were under forty years of age. The First Count further alleges plaintiff's job performance was satisfactory, and that the realignment of areas and area managers was merely a pretext for age discrimination. *fn3" See Complaint, First Count, paras. 2-5. Under this count plaintiff seeks reinstatement, or in the alternative, front-pay, as well as back pay.

 The Second Count of the complaint alleges Mobil has engaged in a pattern or practice of reducing its salaried work force through terminations, lay-offs, and by coercing employees to retire or depart involuntarily. The Second Count alleges this practice has disproportionately affected Mobil's older employees, specifically those between the ages of forty and seventy. Id., Second Count, para. 5. The Second Count further alleges Cherchi has suffered emotional distress as a result of his discharge and despite diligent efforts has not been able to find comparable employment. Id., paras. 7-8. Under this count plaintiff seeks reinstatement, back pay, as well as compensatory and punitive damages.

 After conducting discovery, Mobil moves for summary judgment. Mobil argues it is entitled to summary judgment because Cherchi cannot establish a prima facie case of discrimination either under disparate treatment or disparate impact theories. Mobil argues further that even if plaintiff can establish a prima facie case, he has not raised a genuine issue of fact as to whether Mobil's proffered reasons for its actions are a pretext for age discrimination. For the reasons which follow, Mobil's motion for summary judgment is granted. *fn4"

 Discussion

 A. Summary Judgment Standard

 To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The district court's task in deciding the motion is not to "determine the truth of the matter but to determine whether there is a genuine [factual] issue" which can only be properly resolved by a trier of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All evidence submitted must be viewed in a light most favorable to the party opposing the motion. See Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 Although the summary judgment hurdle is difficult to overcome, it is by no means insurmountable. As the Supreme Court has stated, once the party seeking summary judgment has pointed ...


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