Case Information
*1 Before E ASTERBROOK , M ANION , and S YKES , Circuit Judges. M ANION , Circuit Judge.
Thompson Distribution’s owner, John Thompson, who is black, fired five white employees. Those employees, Mark Hague, Cynthia Hague, Mark Brown, Bernard Dubois, and Anna Perrey, then sued Thompson Distribution Co., alleging race discrimination in violation of 42 U.S.C. § 1981. The district court granted Thompson Distribution summary judgment. The plaintiffs appeal and we affirm.
I.
On November 26, 2001, John Thompson, who is black, purchased at a public sale the assets of Mutual Pipe & Supply Company, Inc., after Mutual Pipe defaulted on a bank loan. Prior to purchasing Mutual Pipe, Thompson had met with its Vice President and General Manager, Mark Hague. Hague had worked for Mutual Pipe for thirty-two years and his grandfather had started the business. Unfortu- nately for the Hague family, one of its major customers went bankrupt, and Mutual Pipe never recovered from the substantial financial hit it took as a result of its customer’s bankruptcy. After several years of losing money, and finally defaulting on a bank loan, it became clear that Mutual Pipe could not remain in business.
Although Thompson originally considered buying Mutual Pipe, he realized that the asking price was significantly greater than its value and decided instead to wait until the company went into bankruptcy or the bank auctioned off its assets. In anticipation of the pending sale, Thompson established Thompson Distribution Company. If and when the bank auctioned off Mutual Pipe’s assets, Thompson Distribution would attempt to acquire the assets. If success- ful, it would begin operations as a distributing company, distributing plumbing supplies and equipment to industrial, construction, and institutional firms.
In the months leading up to the public auction, Thompson met with Mark Hague several times to discuss Mutual Pipe’s operations. Thompson also expressed interest in hiring Mark Hague and other Mutual Pipe employees, and he asked Mark Hague to make a list of the Mutual Pipe employees whom he should hire. On November 27, 2001, the day after he was the successful bidder for the assets of Mutual Pipe, Thompson met with all of the Mutual Pipe employees who had expressed an interest in continuing to work for Thompson Distribution, including those employ- ees Hague had recommended.
Thompson Distribution eventually decided to hire about fourteen employees, of whom about twelve (the record is unclear on the exact number) had previously worked for Mutual Pipe. Thompson Distribution then began operations on November 28, 2001. Among those hired were plaintiffs Mark Hague and his wife, Cynthia Hague, [1] Mark Brown, Bernard Dubois, and Anna Perrey, all of whom were white. Thompson Distribution also hired Mary Coleman and Bob McClellan, both of whom were white, along with John’s wife, Norma Thompson, David Bigsby, Jimmy Ford, and Dwayne Springfield, all of whom were black. The following week Thompson Distribution hired another black employee. Including Thompson himself, this made up Thompson Distribution’s initial labor force.
These employees were all hired on an at-will basis. Additionally, in hiring the plaintiffs, Thompson Distribu- tion provided the plaintiffs with an “Employee Handbook,” which stated: “A ninety-day trial period is provided for new employees to evaluate the opportunities of continued service with the company and, likewise, for the company to evaluate the new employee for continued service with the company.” Before the ninety-day period expired, Thompson Distribution fired the five plaintiffs. [2] Thompson Distribution fired Mark and Cynthia Hague on February 15, 2002. According to Mark Hague, in firing him, Thompson merely told him that his services were no longer needed in the future of Thompson Distribution. Similarly, Cynthia testified in her deposition that in firing her, Thompson simply said that she did not fit in the future of Thompson Distribution. Thompson Distribution fired Brown, Dubois, and Perrey on February 22, 2001, telling Brown and Perrey they did not fit in the company, and informing Dubois that Thompson Distribution is “moving ahead without you.” Thompson Distribution replaced Mark Hague, Brown, and Perrey with three new employees, all of whom were black. Thompson’s wife Norma (who is also black) took over Cynthia Hague’s duties. Thompson Distribution did not replace Dubois.
After they were fired, the Hagues, Brown, Dubois and Perrey sued Thompson Distribution for race, age, and disability discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., [3] 42 U.S.C. § 1981, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., and the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., and state law, and for interfering with their ability to attain health benefits in violation of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq. The plaintiffs also sued Thompson, individu- ally, for tortious interference with their contractual relation- ship with Thompson Distribution. The district court granted the defendants summary judgment on all counts. As to the § 1981 claims—the only claims challenged on appeal—the district court concluded either that the plaintiffs failed to establish that they were meeting Thompson Distribution’s business expectations, or that they failed to present suffi- cient evidence of pretext. The plaintiffs appeal.
II.
The district court granted Thompson Distribution sum- mary judgment on the plaintiffs’ § 1981 race discrimination claims. This court reviews the grant of summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. Amadio v. Ford Motor Co. , 238 F.3d 919, 924 (7th Cir. 2001).
On appeal, the plaintiffs initially argue that the district court improperly disregarded evidence they presented in opposing summary judgment and did not consider the evidence in the light most favorable to their claims. To support this assertion, the plaintiffs point to a footnote in the district court’s opinion in which the district court scolded the plaintiffs for including a “17 page narrative which is full of immaterial facts and citations to affidavit paragraphs which contain speculation, opinion, hearsay and conclusory statements.” District Court Opinion at 3, n.2. The district court also reprimanded the plaintiffs for offering up factual “spin” and for “failing to specify what material facts are truly in dispute . . . .” Id. The plaintiffs maintain that this footnote shows that the district court seemingly adopted Thompson Distribution’s factual assertions as though they had gone unrebutted. However, in their brief, the appellants do not identify any specific evidence the district court disregarded. In any event, since our review is de novo, whether the district court improperly ignored the plaintiffs’ proffered evidence is irrelevant now. See Smith v. Cook County , 74 F.3d 829, 834 (7th Cir. 1996) (“Since we have conducted a de novo review of the motion for summary judgment we need not tarry long over these objections.”).
Moving on to the merits: To succeed on a race discrimina-
tion claim under § 1981, plaintiffs may proceed under either
the direct or indirect method.
Dandy v. United Parcel Serv.
Inc.
,
This framing of the prima facie case makes the first
element—that the plaintiffs are members of a protected
class—in essence a non-issue, because everyone has a race
(or sex, or national origin).
See Steinhauer v. DeGolier
, 359
F.3d 481, 484 (7th Cir. 2004). However, in setting forth the
prima facie case in several reverse discrimination suits,
i.e.
,
cases brought by a white plaintiff or a man, this court has
required the white/male plaintiffs to “show ‘background
circumstances’ sufficient to demonstrate that the particular
employer has ‘reason or inclination to discriminate invidi-
ously against whites’ [or men] or evidence that ‘there is
something “fishy” about the facts at hand.’ ”
See Ineichen v.
Ameritech
,
At first blush, it might seem that this line of cases altered
the “member of the protected class” element of the prima
facie case for white/male plaintiffs. However, that is not the
case. Rather, this court adopted the background circum-
stances standard because in setting forth the indirect
method in
McDonnell Douglas
, the Supreme Court stated
that a prima facie case of racial discrimination required the
plaintiff to show, “(i) that he belongs to a
racial minority
; (ii)
that he applied and was qualified for a job for which the
employer was seeking applicants; (iii) that, despite his
qualifications, he was rejected; and (iv) that, after his
rejection, the position remained open and the employer
continued to seek applicants from persons of complainants’
qualifications.”
However, “[i]t is well settled law that the protections of
Title VII are not limited to members of historically
discriminated-against groups.”
Ballance
, 424 F.3d at 617.
Moreover, the Supreme Court made clear in
McDonnell
Douglas
that the prima facie case is not inflexible and as
“[t]he facts necessarily will vary in Title VII cases, . . . and
the specification above of the prima facie proof required
from respondent is not necessarily applicable in every
respect in differing factual situations.”
McDonnell Douglas,
In this case, the plaintiffs, all of whom are white, pre- sented evidence that their black boss fired them and re- placed three of them with black employees, the fourth plaintiff’s job was assumed by a black employee, and the fifth was not replaced. These facts are sufficient to satisfy the modified McDonnell Douglas test, applicable to reverse discrimination cases. That is because, although the plaintiffs in this case are white, the background circumstances show that this case is no different than the more typical discrimi- nation case. Typical discrimination cases often see members of a racial minority challenging their non-minority em- ployer’s decision to fire them and hire white replacements. Analogously, here we have a black employer terminating white employees and hiring black replacement workers. These circumstances create the same inference of discrimi- nation flowing from the more straightforward discrimina- tion cases. [5] Cf. Preston , 397 F.3d at 542 (explain ing “[i]t is not surprising when women discriminate in favor of women any more than it is surprising when men discrim- inate in favor of men”). Therefore, under these circum- stances, we conclude that sufficient “background circum- stances” exist to allow the white plaintiffs to satisfy the modified first prong of the prima facie case.
Nonetheless, Thompson Distribution argues that it is entitled to summary judgment because the plaintiffs did not present sufficient evidence to satisfy the second prong of the prima facie case—that they were meeting Thompson Distribution’s business expectations. Alternatively, Thomp- son Distribution argues that even if the plaintiffs established a prima facie case, it is still entitled to summary judgment because it produced evidence of legitimate, non-discrimina- tory reasons for firing the plaintiffs and the plaintiffs did not present any evidence of pretext. For each plaintiff, Thompson Distribution points to evidence to support its view that the plaintiffs did not meet its business expecta- tion, or, alternatively, that Thompson Distribution fired them for legitimate, non-discriminatory reasons. Because Thompson Distribution’s rationale differs with each plain- tiff, we will consider them separately below.
Before continuing, however, we pause to first discuss the
appropriate analysis for this case. Here, the employer
maintains that the plaintiffs were not qualified for the
position (the second prong of the prima facie case) and that
it fired the plaintiffs for a legitimate non-discriminatory
reason. The plaintiffs respond by arguing that the employer
is lying about both its business expectations and about the
proffered reasons for their termination. Normally a court
should first determine if a plaintiff has established a prima
facie case before subjecting the employer to the pretext
inquiry.
Peele v. Country Mut. Ins. Co.
,
A. Mark Brown
Mark Brown worked for Thompson Distribution as a warehouse manager. Thompson testified in his deposition that Thompson Distribution fired Brown for two main reasons: 1) Brown repeatedly cursed and yelled at his subordinates; and 2) Brown allowed a supplier to remove boilers from Thompson Distribution which Thompson believed belonged to him and not the supplier. This evi- dence satisfied Thompson Distribution’s burden under McDonnell Douglas to produce evidence of a legitimate non- discriminatory reason for Brown’s firing. See Rand v. CH Indus., Inc. , 42 F.3d 1139, 1145 (7th Cir. 1994) (explaining that an employer’s mere production of a legitimate non- discriminatory reason for its action rebuts the presumption of discrimination created by the prima facie showing).
At this point, the burden shifts back to Brown to present
sufficient evidence that Thompson Distribution’s reason
was pretextual.
Statler v. Wal-Mart Stores, Inc.
,
While arguing that Thompson Distribution’s proffered reasons for his firing were pretextual, Brown admits that he used profanity at work, but he claims it was nothing more severe than “hell” or “damn,” and that he needed to yell and use this “shop talk” to motivate the individuals hired by Thompson Distribution, whom Brown claims were inexperienced and incompetent. As to allowing the supplier to remove the boiler, Thompson claims that he purchased all of the assets physically located at Mutual Pipe on November 26, 2001, including the boilers. Brown argues in response that the supplier owned the boilers and therefore he did nothing wrong. Specifically, Brown claims that prior to Thompson’s purchase of Mutual Pipe’s assets, Hague had arranged to return the boiler to the supplier for credit on its account, but that the supplier was unable to pick up the boiler prior to Thompson Distribution taking over. Brown thus maintains that the boiler belonged to the supplier and not Thompson Distribution.
In making these arguments, however, Brown does not
comprehend his legal burden. Brown must establish that
Thompson Distribution lied about its reasons for firing
him—not that Thompson Distribution was wrong for firing
him for the reasons it gave.
See Stewart v. Henderson
, 207
F.3d 374, 378 (7th Cir. 2000) (explaining that our role is
solely to assess whether the justifications given are honest,
not whether the sanction imposed was accurate, wise or
well considered).
See also Jordan,
In addition to firing Brown, Thompson Distribution fired
Dubois. In his deposition testimony, Thompson explained
that Thompson Distribution fired Dubois because sales of
hydraulic heating equipment—Dubois’s area of sales—were
very low. This satisfied Thompson Distribution’s burden of
production. The burden then shifted to Dubois to present
evidence that Thompson Distribution’s rationale was
pretextual. Dubois, however, like Brown, admits to the
underlying deficiency—Dubois acknowledges that his sales
were low. Instead, Dubois claims that low sales of hydronic
systems were not “attributable to any failure on his part,”
but rather because Thompson had neither the inventory nor
a vendor for these systems. However, “simply shifting the
blame for a problem does not establish pretext.”
Wohl v.
Spectrum Mfg., Inc.
, 94 F.3d 353, 357 (7th Cir.1996) (citing
Schultz v. General Elec. Capital Corp
.,
C. Anna Perrey
As to Perrey, Thompson Distribution claims it fired her
because she was insubordinate and unwilling to recognize
Thompson as the new leader. In his deposition, Thompson
stated that when he asked Perrey to perform certain func-
tions, she responded along the lines of “we don’t do it that
way,” or stated that she had to check with Mark Hague. In
response, Perrey claims that she never refused to follow
Thompson’s directions, but rather that she did not know
how to perform the tasks Thompson requested and thus she
needed to check with Mark Hague for guidance. At most,
this means that Thompson was mistaken in his belief that
Perrey was being insubordinate. However, as noted above,
“[p]retext requires more than showing that the decision was
‘mistaken, ill considered or foolish.’ ”
Ballance
,
D. Cynthia Hague
Thompson Distribution also fired Cynthia Hague. In his deposition, Thompson explained that he fired Cynthia Hague because she was not proficient in the accounting system used by Thompson Distribution and because she spent office hours working on tasks related to wrapping up matters pertaining to the predecessor company, Mutual Pipe. Like the other plaintiffs, Cynthia Hague responds, not with evidence of pretext, but by complaining about being fired for these deficiencies. As to the accounting system, Cynthia admits she was not well versed in the program, but claims that Thompson knew that when he hired her. However, Thompson explained in his deposition that he believed Cynthia was more skilled at the accounting program than she turned out to be. Cynthia does not present any evidence to call into question Thompson’s veracity. Cynthia also admits that she worked on closing out Mutual Pipe’s books and drawing up a final financial report for Mutual Pipe, but claims that it was necessary to close down Mutual Pipe’s records before inputting data relative to Thompson Distribution. Again, this merely calls into question Thompson’s judgment—it does not constitute evidence of pretext.
E. Mark Hague
Finally, Thompson Distribution fired Mark Hague. In his deposition, Thompson explained several reasons for Mark Hague’s firing: Mark Hague (along with Brown) allowed a boiler that Thompson believed belonged to him to be returned to a vendor; he sold products to customers at a margin below that set by Thompson Distribution; and he believed that Hague had informed several suppliers that Thompson Distribution would pay for goods and services that they had supplied to Mutual.
In response, Mark Hague, like the other plaintiffs, focuses not on whether Thompson honestly fired him for the proffered reasons, but rather on whether Thompson was right to fire him for those reasons. For instance, like Brown, Hague claims that the vendor owned the boilers, not Thompson Distribution. However, that does not address the question of whether Thompson honestly believed that he owned the boilers. Similarly, Mark Hague admits that he sold products below the margin Thompson set, but claims that was necessary because he would not be able to obtain any sales at a higher level. However, that was Thompson Distribution’s decision and not Hague’s call, and Hague cannot avoid summary judgment by challenging the wisdom of that choice. Hague finally claims that he did not tell suppliers that Thompson would pay for products Mutual had ordered. The record, however, shows that Thompson believed that to be the case, so at most, Hague has shown that Thompson was mistaken—not that he lied. Because Hague has not presented any evidence of pretext, Thompson Distribution is entitled to summary judgment on Mark Hague’s race discrimination claim.
To this point, we have focused on the individual plaintiffs and their specific responses to Thompson Distribution’s proffered reasons for their firings. As detailed above, the plaintiffs admit to their personal performance problems and rather than present any evidence showing that Thompson Distribution did not honestly believe the reasons asserted, they merely rationalize their deficiencies. In addition to minimizing their personal performance problems, the plaintiffs argue that without documentation confirming the reasons Thompson proffered in his deposition testimony, a jury trial is required because a jury could disbelieve Thomp- son.
In support of their position, the plaintiffs cite
Dunn v.
Nordstrom, Inc.
,
At this point, the burden remains with the plaintiffs to
present evidence of specific facts that call into question the
veracity of Thompson Distribution’s proffered reasons.
Rand
, 42 F.3d at 1146. Merely asserting that a jury could
disbelieve an employer’s reason is insufficient.
Id.
Likewise,
complaining that Thompson Distribution did not document
the performance problems does not create an inference of
pretext.
See Rand
, 42 F.3d at 1145 (rejecting plaintiff’s
argument that his employer’s proffered reasons for his
termination were pretextual because the employer never
documented or communicated his performance problems).
This is because in complaining about the lack of documenta-
tion, the plaintiffs are not really challenging the veracity of
Thompson Distribution’s proffered reason, but are rather
attempting to impermissibly increase Thompson Distribu-
tion’s burden from a burden of production to a burden of
proof. This is impermissible.
See Burdine
,
Similarly, the plaintiffs’ complaints that Thompson Distribution failed to provide any written job descriptions and failed to conduct performance reviews, or provide them with information about their performance problems, also does not constitute evidence of pretext. Id. Again, as a small company, it is not surprising that Thompson Distribution did not conduct any formal performance reviews or provide written job descriptions. Such formalities are time-consum- ing and costly. In fact, Anna Perrey testified that she never received a performance review while working for Mutual. The record also indicates that Mutual lacked detailed job descriptions as well, as in taking over Mutual, Thompson Distribution asked the employees to fill out desk procedures for their jobs. Moreover, although Thompson Distribution did not conduct formal job reviews, the record shows that Thompson spoke to the plaintiffs on numerous occasions about their performance problems. Regardless, as noted above, the failure to communicate performance problems does not constitute evidence of pretext. Rand , 42 F.3d at 1145.
The plaintiffs all also complain that at the time of their firing, Thompson did not tell them why they were being fired. That is not quite true. In firing the plaintiffs, Thomp- son told the plaintiffs either that they did not fit in the company or that the company would be moving forward without their services. [8] Although Thompson did not tell the plaintiffs the specific reasons they did not “fit,” the fact that Thompson did not elaborate does not constitute evidence of pretext. [9]
The plaintiffs further attempt to avoid summary judgment
by arguing that because Thompson Distribution did not
follow the progressive disciplinary structure set forth in the
company handbook, Thompson Distribution’s reasons for
firing them were pretextual. The handbook, while establish-
ing a progressive disciplinary structure, also reserved for
Thompson Distribution the right to fire employees (includ-
ing those who were not probationary) immediately, provid-
ing: “The company may decide, in its discretion, that a first
offense in a specific situation will result in discharge.”
Because Thompson Distribution did not violate its own
policies, this does not constitute evidence of pretext.
Rand
,
As detailed above, the plaintiffs did not present any evidence that Thompson Distribution’s proffered reasons for their firing were pretextual. At oral argument, the 23 plaintiffs’ attorney made a last-ditch effort to avoid sum- mary judgment by repeatedly stressing the racial composi- tion of Thompson Distribution’s workforce. In fact, after “may it please the court,” the plaintiffs’ attorney’s next sentence was: “By admission of even the defendant this is a case of the only five caucasians working and employed at Thompson Distribution being fired simultaneously by an African-American business owner . . . .” We then asked: “You said they were the only five. There were fourteen employees, right.” The plaintiffs’ attorney responded, “exactly,” and this court continued: “And all the rest were black?” The plaintiffs’ attorney then stated: “That is my knowledge. And that has not been disputed in the record.” Later, in the oral argument, when the plaintiffs’ attorney continued to argue for a jury trial, this court again returned to the issue of the racial composition of the workforce, by asking whether the plaintiffs’ attorney’s position was that without documentation of a performance problem, a jury trial is required because of “[t]he fact that all of the white people were fired and replaced by black people.” The plaintiffs’ attorney responded: “Yes, that’s the fundamental point.”
However, this fundamental point is flawed both factually and legally. First, contrary to the plaintiffs’ attorney’s representation, the record, or at least those portions pro- vided to this court, establishes that when Thompson Distribution began operations, in addition to the five white plaintiffs, Thompson Distribution also hired Mary Coleman and Bob McClellan, both of whom were white, as part of the initial fourteen-person workforce. [12] The record also shows that although Thompson never replaced Dubois with a salesperson dedicated to handling hydraulic sales, after firing Dubois, Thompson Distribution hired David Shank, who is white, to handle sales. The plaintiffs also ignore evidence showing that Thompson Distribution, which at the time of summary judgment only employed nine employees, had during its time of operations terminated at least six black employees. Thus, contrary to the plaintiffs’ portrayal, we do not have here a case of a black business owner firing only white employees and hiring only black replacements.
Moreover, even if we had that case, legally that is insuffi-
cient to establish pretext. The plaintiffs must do more than
merely point to race and proclaim: “Aha! Discrimination.”
We stressed this point in
Millbrook v. IBP, Inc.
,
III.
Thompson Distribution hired the five plaintiffs for a ninety-day trial period. As that period neared its end, Thompson Distribution decided that the plaintiffs were not a good fit, for a variety of reasons. The plaintiffs admit to the underlying conduct at issue, but rationalize and mini- mize their failures. However, this court is not a personnel director, judging the fairness of employment decisions. Rather, this is a discrimination case, and to avoid summary judgment, the plaintiffs must present evidence of pretext. They did not do so. Accordingly, the district court properly granted Thompson Distribution summary judgment on the plaintiffs’ § 1981 race discrimination claim. We A FFIRM . A true Copy:
Teste:
_____________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—2-7-06
Notes
[1] Thompson Distribution originally employed Cynthia Hague on a contract basis, but on January 11, 2001, hired her as a full- time employee.
[2] The plaintiffs maintain that Thompson Distribution never told them that their employment was on a 90-day probationary period. The Handbook, however, clearly provides for an initial trial period. Moreover, upon hiring the plaintiffs, Thompson Distribution provided letters to the plaintiffs which referenced the trial period, noting that health benefits would begin following the ninety-day trial period. Thus, the plaintiffs were on notice that Thompson Distribution considered them probationary employees for the initial ninety days. In any event, the plaintiffs were at-will employees.
[3] The plaintiffs later dropped their Title VII claims, proceeding instead under § 1981, because Thompson Distribution did not have the requisite fifteen or more employees to fall under the (continued...)
[3] (...continued) auspices of federal discrimination law. See 42 U.S.C. § 2000e(b).
[4] The plaintiffs do not seek reconsideration of the
Phelan/Mills
line of cases that established this modified standard in reverse
discrimination, in light of
Iadimarco v. Runyon
,
[5] In cases involving white decision-makers favoring minorities over whites, other background circumstances may satisfy the plaintiffs’ prima facie case. For instance, evidence that those (continued...)
[5] (...continued)
“running the company are under pressure from affirmative action
plans, customers, public opinion, the EEOC, a judicial decree, or
corporate superiors imbued with belief in ‘diversity’ to increase
the proportion of [minorities] in the company’s workforce,”
would satisfy the modified
McDonnell Douglas
standard.
Preston
v. Wis. Health Fund
,
[6] Because Dubois was not replaced, his claim also fails because
he lacks evidence that a similarly situated individual outside the
protected class was treated more favorably.
See, e.g., Gadsby v.
Norwalk Furniture Corp.
,
[7] The added expense of defending employment decisions in court has an obvious impact on small business owners. In this (continued...)
[7] (...continued) case, for instance, Thompson stated that as of June 2003, he had already incurred legal fees associated with this lawsuit which total nearly half of the profits he earned in 2002.
[8] On appeal, Perrey also asserts that in firing her Thompson told her she had not done anything wrong and that that constitutes evidence that Thompson Distribution’s proffered reasons were pretextual. That is not quite the exchange that took place, at least according to Perrey’s deposition testimony. Perrey stated in her deposition that after Thompson fired her she asked “[d]id I do something wrong?” Perrey testified that Thompson responded, “No,” but that when she pressed him further, he explained: “No. You just don’t fit in with the future of Thompson Distribution.” That explanation is entirely consistent with the rationale Thomp- son provides for firing Perrey—that she was insubordinate and unwilling to recognize Thompson as the new leader.
[9] Plaintiffs cite
Wilson v. AM General Corp.
,
[10] Thompson testified in his deposition that the progressive disciplinary mechanism did not apply to employees during the ninety-day trial period. The plaintiffs argue in response that the Handbook did not exclude probationary employees from the progressive disciplinary structure. However, the Handbook expressly provided that: “A 90-day trial period is provided for new employees to evaluate the opportunities of continued service with the company and, likewise, for the company to evaluate the new employee for continued service with the company.” It would not make sense to apply a progressive disciplinary structure during a 90-day trial period, but since the Handbook expressly provided for discharge for the first offense, whether the progres- sive disciplinary mechanism applied to probationary employees is immaterial.
[11] In concluding his argument, the appellants’ attorney once again stressed the need for a jury trial, where “you have five whites, the only whites employed at the time at Thompson Distribution, all replaced by African-Amercians, except one. . . .”
[12] The record also shows that Thompson Distribution did not fire the plaintiffs simultaneously, but rather fired the Hagues on February 15, 2001, and the remaining plaintiffs one week later.