*1 GADSBY, Alan Michael
Plaintiff-Appellant, FURNITURE
NORWALK Defendant-Appellee.
CORPORATION, 95-1507.
No. Appeals, Court States
United
Seventh Circuit. 29, 1995. Sept.
Argued 13, 1995. Dec.
Decided Rehearing Suggestion
Rehearing and 29, 1996. Denied Jan. Banc
En *2 Hakeem, IL, Chicago, David L. tion. Norwalk also claims that had Ayesha S. Dvorak, Tomes, personality. an abrasive Lee & Chica- (argued), Lee IL, Plaintiff-Appellant. go, “special selling did order” Norwalk, meaning pro- would Clark, Jr., Holloway Jennifer S. Donald C. *3 space provide cure floor at a retailer and IL, Degrand, Chicago, (argued), Clark & samples products copies of Norwalk’s and Defendant-Appellee. catalog. Norwalk’s When a customer or- retailer, dered furniture from the an order CUMMINGS, FLAUM and Before to would be sent Norwalk and Norwalk MANION, Judges. Circuit ship would manufacture and the item within days. job mainly 30 The salesman’s was CUMMINGS, Judge. Circuit procured complete once he had the floor Gadsby Alan for Norwalk Michael worked space placed samples at the retail Corporation Furniture as a commissioned Gadsby straight five-per- store. received a representative from 1984 until his ter- sales ordered, cent commission on furniture 1990, Gadsby By in 1990. was mination paid was on the 10th of the month after the $235,000 annually earning approximately in meaning order “on was Norwalk books”— Chicago from his sales in the commissions acknowledged had received and it —and the termination, After Nor- market. shipped. merchandise was Chicago in walk continued its sales but dis- party The Contract allowed either to ter- payments continued its commission to Gads- reason, relationship, by minate the without claims, by. Among Gadsby alleged other in giving days’ In September 30 notice. the district court that Norwalk breached his Gadsby Norwalk giving informed that it was Representative Agreement by failing to Sales days’ terminating him notice before pay him commissions after termination and regard pay- Contract. to With commissions against him Norwalk discriminated be- Contract, able after termination of the age. cause of his The district court entered that, agreement Contract stated “if this summary judgment in favor of Norwalk on Company, Company terminated these two claims and dismissed the others. pay shall commissions when and as earned reasons, following For the we affirm. ¶ (Contract 3(f)). on all orders entered.” company interprets language this I. pay representative mean that it must entered, necessarily all sales but not shipped, corporation is an Norwalk Ohio the busi- prior day that were on its books to the last manufacturing selling ness of furniture. 30-day period. According notice to Nor- 1984, Gadsby In December entered into a walk, policy repre- allows a terminated (“Con- Representative Agreement Sales days get sentative 30 all orders on which tract”) with Norwalk to sell Norwalk’s furni- he has worked onto the books so that he can exchange ture for sales commissions. earn commissions on those orders. Thus Gadsby was Norwalk’s sole Gadsby Norwalk sent a final check for com- area, Chicago metropolitan sales and he up missions including earned October annual increased sales that area from 14, 1990. $779,000 $4,800,000 in 1984 to in 1990. There is substantial Gadsby years evidence that Norwalk old when Norwalk pleased Gadsby’s performance with until terminated the Contract. After the termi- nation, including increasing- his termination in Charge filed a of Discrimina- ly high rankings among Norwalk’s salesmen Equal Employment Opportuni- tion with the (“EEOC”) compliments ty and handwritten manage- stating Commission that he had Nonetheless, ment. against because, Norwalk claims that been discriminated inter alia, good working lacked a relationship “[y]ounger representatives with Company, major with Smithe Furniture sales much lower than mine have been re- account, and that had a responded [Norwalk].” tained problem disclosing EEOC, stating confidential informa- to was not an States, v. 50 F.3d quor, Inc. United poor relation- had “employee,” (7th Cir.1995). Furniture, of a motion grant that he was ship with Smithe novo, average de with all is also reviewed dismiss “top representative,” and complaint 41.89 alleged representatives of the facts age of its sales appeal reasonably therefrom claims drawn further years. Norwalk .inferences representatives light most favorable it has terminated sales viewed Elwood, City it has terminated plaintiff. 40 and that younger than Caldwell (7th Cir.1992). though sales were their representatives even satisfactory. Charge for lack The EEOC dismissed II. Gadsby then investigate.” “jurisdiction to *4 Furni- and Smithe against Norwalk A. Breach of Contract
filed suit
court, stating claims for
in Illinois state
ture
Gadsby
two
that Nor-
arguments
makes
discrimination,
contract,
prom-
age
of
breach
pay
wrongfully failed to
him com-
walk
discharge,
wrongful
restitu-
issory estoppel,
First,
argues
termination.
he
missions after
prospective ad-
tion, and interference with
as the
he is entitled
commissions
Furniture
vantage;
also sued Smithe
samples
procuring cause of sales made from
contract. The
alleging interference with
placed at his retail
catalogs that he
age
all but the
discrimi-
court dismissed
state
Alternatively,
argues that the
he
accounts.
estoppel
claims.
promissory
nation and
all
him to
“on
entitles
commissions
Contract
Furniture,
with Smithe
settled
When
with no cutoff date.
orders entered”
case
diversity,
removed the
creating
court
The district
district court.
to federal
states
procuring cause doctrine
The
to reconsider the
granted
motion
contrary agreement,
absence of a
the
claim
of the breach-of-contract
dismissal
compensation from his
agent
is entitled
complaint.
him to file an amended
permitted
agent
the
for a transaction of which
principal
promisso-
ultimately
dismissed
The court
Wright
v.
procuring cause. Harold
Co.
is
mo-
granted Norwalk’s
ry estoppel claim and
Co., 49 F.3d
Du Pont De Nemours &
E.I.
age dis-
summary judgment on the
tions
(7th Cir.1995).
Gadsby argues that
claims.
and breach-of-contract
crimination
of sales for which
procuring
cause
he is
Gadsby’s cross-motion
The court also denied
made
compensated,
was not
summary judgment on the breach-of-con-
his termi
immediately prior to and after
appeal
This
followed.
tract claim.
directly
procurement
due
nation were
to review the
Gadsby first asks
Court
this
and his
space in
retail stores
floor
of
summary judgment
grant
court’s
of
district
catalogs in those
samples
placement of
on
breach-of-contract
favor Norwalk
held,
correctly
district court
The
stores.
Gadsby’s cross-
claim as well as the denial
procuring cause doctrine
Second,
summary judgment.
motion for
law,
governs
Ohio
which
inapplicable. Under
improp-
court
Gadsby argues that the district
contract,
procuring cause doctrine
against him
summary judgment
erly entered
apply if the contract between
does
Finally,
claim.
on the
discrimination
provides when commissions
expressly
parties
promisso-
Gadsby argues
the claims for
May, 147
v.
Ohio
paid. See Ullmann
bewill
restitution,
interference with
ry estoppel,
(1947);
Davis & Tat
N.E.2d 63
St.
wrongful
advantage, and
dis-
prospective
Inc.,
era,
F.Supp.
Gray-Syracuse,
Inc.
dismissed. We will
charge
improperly
(S.D.Ohio 1992);
see also LaScola
arguments
turn.
each of these
address
Communications, 946 F.2d
Sprint
v. U.S.
in this
contract
premised on 28
jurisdiction is
Our
for when commis
expressly provided
Summary judgment
§
is re
U.S.C.
paid upon termination
novo,
would be
submitted
with all evidence
sions
viewed de
Company
pay commis
shall
“the
to be drawn Norwalk:
and the
inferences
en
on all orders
and as earned
favorable
when
light
most
sions
therefrom viewed
¶ 3(f)).
(Contract
Food & Li-
tered.”
non-moving party. East
to the
precludes appli-
on
of the
provision
been entered
the books
Com-
Inclusion
procuring
pany prior
cause doctrine. As
to such termination....”
cation of
¶
(Contract
3(h)).
Wright,
doctrine of
“[t]he
in Harold
we noted
term,
a default
cause creates
procuring
disability
3. Termination due to
plugs
that a court
into a
say a term
is to
incapacity:
paid
or
commissions
“on all
way
in a
court
gap
fill in a
contract
on the
orders which have been entered
they
had
would have done
parties
thinks
Company during
peri-
books of the
mandatory
It
it.
thought about
disability
incapacity....”
od of
term,
change
by impli-
can
it
parties
¶
(Contract
3(g)).
expressly.”
the Contract five reasons for termi separate para- terminations are contained in corresponding provisions nation and five graphs, by but the last two—termination payment post-termination commissions: company by Gadsby contained in a —are Gadsby’s reaching 1. Termination due to (f), single paragraph, Paragraph which is im- paid 70: all commissions “on or- mediately preceded provision that al- prior ders entered to the date of such days’ lows termination notice. Thus ¶ (Contract 3(i)). (e)
termination.” Paragraph parties tells the how to termi- (f) Paragraph Termination due to death or nate the Contract and tells the insolvency bankruptcy: parties commis- how such a termination will affect paid sions “on all orders have commissions: * * * harshly than who discontinue quit more those (e) agreement party to Either reason, employer same, relationship with the due their without may terminate (30) beyond their control. writing circumstances thirty days’ notice upon party. the other nothing Gadsby points to under Ohio (f) is terminated agreement if this That lead us to a different conclu law that would Rep- of the Commission Sales resignation “presume courts that the intent sion. Ohio pay resentative, Company shall com- parties a contract resides in the only on or- and as earned when missions they employ agree language chose agreement is termi- if this shipped; ders in a ment” and terms contract “[w]hen Company shall Company, the by the nated unambiguous, courts will not in effect when and earned pay commissions by finding an a new contract intent create (f)). ¶¶ (Contract 3(e), entered. all orders language expressed in the clear em express of an the absence together, Read ployed by parties.” Forest Shifrin (f), Para- Paragraph unlike date cutoff Enters., Inc., City Ohio St.3d (h), (i), under- perfectly (g), graphs (Ohio 1992). language N.E.2d naturally flows cutoff date standable: employed by is suffi previ- 30-day provision notice imply an ciently we need not inten clear that clause in Para- After each paragraph. ous language contrary to the of the Contract. tion 30-day peri- (f), “during the words graph Wright, on Harold su- reliance is understood. prior termination” od argument unpersua- pra, for his contract Second, makes the ex- Gadsby’s argument case, indepen- Wright was an sive. (f) Paragraph between press distinction for Du dent manufacturer’s entered” su- shipped” and “orders “orders pro- given responsibility for Pont who was that the first three *6 fishing moting purchase of Du Pont’s contain listed above types of terminations provided contract products. Their dates, He but the fifth does not. cutoff from Du Pont Wright commissions receive fact that the fourth —termination ignores the accept and [Du Pont] “on those orders we applying does not. Thus by Gadsby —also Wright at the Du terminated ship.” Pont Gadsby’s reasoning to both fourth pay to commissions end of 1991 and refused terminations, Gadsby would types of fifth We re- products shipped thereafter. on receiving post-termination commis- continue entry summary the district court’s versed procured regard- that he on orders sions all judgment of Du Pont: favor terminated he or Norwalk whether where, try as cases This is one of those interpretation defeats This the Contract. will, figure out the can neither we we Contract, language which the clear language from its meaning of the contract on “or- distinguishes between commissions nor background the uncontested facts by for terminations shipped” ders rule to resolve the contro- invoke a default for ter- on “orders entered” and commissions controversy thus cannot be versy. The only possible by Norwalk. The minations evi- to extrinsic resolved resort without is to way give effect to this distinction dence. relation between acknowledge the obvious (e) (f).
Paragraphs
difficulty in Harold
F.3d at
310.
first, the
did
Wright
contract
sufficiently per-
though
two-fold:
Finally,
we are
by
proper cutoff date
specify the
argu-
by
language
and structure
suaded
second,
shipped;
orders
to be
ments,
fails to the
had
also
note
(to
under the contract
Wright’s obligation
been
why
would have
explain
the Contract
sales)
or-
complete
any
before
repre-
promote
generous to a sales
to be more
drafted
shipped.
goods
or
Gads-
one ders were received
quits or is fired than to
who
sentative
Wright
Harold
by correctly notes that
retires, dies,
disability.
experiences a
or
who
of these difficul-
analogous
the second
as to
employment
that an
dictates
Common sense
obligated to
not,
Gadsby, Wright, was
like
would,
treat
ties.
likely than
contract
the contract well before
fully perform under
employees who
employees and
terminated
pay
direct and circumstantial evidence
obligation to
commissions
eient
Norwalk’s
first,
correctly
alleging,
represen-
that Norwalk’s sales
in.
kicked
contract,
contracts
for termination when
tative
called
unlike the contract
notes that its
representative
age
the sales
reached
65 or 70
specify
proper
cut-
Wright, does
Harold
and, second,
manager
entered.
that Norwalk
told a
had to be
off date
which orders
(f)
63-year-old
representative that “if
above,
Paragraph
when
is read
stated
As
time,
(e),
probably
didn’t retire this
he would
conjunction
Paragraph
it is clear
go.”
allegations
Both
during the 30-
let
are insufficient
had to be entered
that orders
age
determining
factor in
show
was the
day period prior to termination.
first,
Gadsby’s termination.
at
As
much
makes too
of our rever
drafted,
provisions
time the termination
were
Wright.
summary judgment in Harold
sal of
they
legal
jurisprudence.
under ADEA
excerpt
demonstrates that
above
event,
provisions
absolutely
In
have
entirely on our conclusion
decision was based
bearing
Gadsby,
age
no
who was fired at
necessary,
that extrinsic evidence
Further, Gadsby
shown that
premature.”
“[sjummary judgment was
provisions,
Norwalk ever enforced the
law, “[o]nly
at
Under Ohio
when
310.1
the facts show that Norwalk has had sales
unclear or am
language
of a contract is
representatives
age
over
70. The district
biguous,
the circumstances sur
or when
judge correctly
pres-
noted that the “mere
language
rounding
agreement invest the
contract,
ence of such a term in a
without an
meaning
special
with a
will
of the contract
employment
actual adverse
action taken on
in an effort
extrinsic
be considered
evidence
age,
the basis of
is not
discrimination.”
give
parties’
intentions.”
effect
second,
alleged
As to the
comment is too
un
Shifrin,
at 501.
597 N.E.2d
ambiguous regarding age.
example,
For
language
able to show either
noted,
the district court
it could mean that
ambiguous
special
circumstances sur
the sales
needed to be termi-
rounded the Contract.
reason,
nated for a
but Norwalk
preferred
simply
addition,
that he
retire.
Age
B.
Discrimination
the comment was
made
1985 and is too
summary judg-
The district court entered
remote
time to constitute evidence of dis-
against
Age
on his
Discrimina-
ment
crimination in
case.
*7
(“ADEA”)
Employment
Act
claim be-
tion
plaintiff
The second method a
present
direct or circum-
cause he failed
may
age
use
establish
discrimination is set
of discrimination and be-
stantial evidence
Green,
Douglas Corp.
forth in McDonnell
v.
prima
he failed to make out a
facie
cause
792,
1817,
411
93
U.S.
S.Ct.
1331
to reduction-in-force
Gadsby’s citation
employer’s articu
that the
demonstrate
then
(“RIF”)
unpersuasive.
In Col-
is also
cases'
for discrimina
pretext
a
are
reasons
lated
(7th Cir.1995),
Co.,
prima facie case, inference of In an RIF discrimi- than some- worse that he was treated show treat- favorable nation raised Thus, Gadsby argues, he satis- younger. one the act employees (typically younger ment of did since Norwalk fourth factor fied them) premised on some firing of not representatives younger sales terminate plaintiffs between degree fungibility than his. lower job. A me- employee’s younger job and the *8 could in an RIF case chanic terminated factor of the fourth proper formulation younger because a prima facie case make a in this Circuit. seen several variations has reasoning in As the was retained. chemist given are understandable variations demonstrates, fungibili- cases like Collier cases age discrimination types of different terminated Kralman, jobs implicit when ty of supra, example, For arise. by responsibilities are absorbed employee’s held that case. We a failure-to-hire of discrimi- employees. The inference other facie case prima out where plaintiff made a employ- from belief that ultimately nation comes defendant showed based plaintiff for termination Hiring are er selected cases younger employee. a hired employees who were group of age from a on cases than termination inherently different based termination qualified for equally concept “replacement” such single-dis- a age. In than criteria other case would be nonsen- part of the among jobs is fungibility charge where fact reliance on the Thus sical. se- demonstrated, age-based no similar replacement require did not Kralman presumed and be process can lection unpersuasive. younger employee is by a 1332 Stores, (7th Cir.1994). necessarily 174, discrimination is
inference of 16 F.3d 177 But agree Gadsby much weaker. Therefore we with the produce, failed to and we have only find, to the extent that the discharge concurrence infer- been unable to a case which might equivalent employ- where ence one held that the fourth upon factor was satisfied discharged responsibilities and his showing ee is a replacement by less than actual employees, Darnell, younger absorbed other which essen- employee.3 In for exam- tially single discharge ple, supplies makes mini-RIF. permissive the most for- Gadsby mulation, But this is not such a case. actually the case plain- turned on representative pri- commissioned sales prove whose tiff’s failure to discharge. constructive mary responsibility expanding Norwalk’s above, necessary As stated it is not market, Chicago sales in the and there is no plaintiffs prove decide whether must actual responsibilities evidence that his were shifted replacement in a single-discharge case. Re- to or repre- absorbed other Norwalk sales gardless formulation, proper Gadsby Further, Gadsby sentatives. was the fails to show that he was treated less favor- Chicago in the area. ably younger employees. than The concur- This ease is unlike a traditional RIF case as rence finds that meets the “treated Collier, described even on a small scale. favorably” less standard pre- because he has agree We are therefore unable to with the salesmen, sented younger evidence that adopting general concurrence in rule that objective performance whose sales and over- the inference of discrimination in an RIF ranking his, all substantially beneath always substantially equal case is to the in- were retained. This evidence is insufficient single-discharge/no-replacement ference in a because it younger fails to show that employ- event, In case. because we hold below objectively ees were qualified salesmen cannot even meet the less strin- First, Gadsby. than was comparing Gads- standard, gent presents RIF this case no bjfs figures Chicago sales figures to sales finally deciding occasion for the issue. in other comparing apples territories is like cases, previous discharge this Court’s oranges, especially without additional ev- variations, the fourth factor has seen several regarding idence the nature and size of the from requiring replace that defendant plain- other sales territories.4 The thrust of Gads- tiff, Prods., Bldg. bj^s Grohs v. Gold Bond argument regarding figures, 1283, Cir.1988), F.2d properly so, certiorari de- is that out-per- far nied, 1036, 490 U.S. 109 S.Ct. predecessor formed his mar- replacement L.Ed.2d or seek a plain- Second, ket. That is irrelevant here. tiff, Sears, Sarsha v. Roebuck system & ranking relies on was discon- Cir.1993), requiring year prior tinued one to his termination. It protected defendant treat others outside the primarily year in his final that Norwalk favorably. class more Darnell Target claims behavior ultimately led to appeared 3. Another formulation in Monaco v. compare Gadsby's difficult for this Court to ob- Fuddruckers, Inc., (7th Cir.1993), 1 F.3d jective qualifications represen- with those of sales plaintiff where we said must establish that "the tatives in other pro- territories. fails to discharge occurred under circumstances which comparison vide regarding, evidence for exam- gave rise to inference of discrimination.” ple, overall number of clients or number of furni- certainly permissive The formulation is given territory ture stores in a that do and do not *9 requiring than replacement, one actual but the carry samples. A sales Rather, case did not turn on the fourth factor. territory in a smaller that has achieved 100% accepted we assumption the district court’s that may qualified saturation well be more than Gads- plaintiff replaced by younger employee for by Gadsby if percent has failed to saturate 90 of establishing prima facie case. Id. Chicago Comparing the represen- market.- sales entirely in tatives different Gadsby's territories is not like phenomenally 4. We high also note that comparing figures assembly line for the area workers. Thus are almost addi- entirely $4,800,000 single due to a tional necessary client: evidence such as of this was to sales, $4,268,106 in total was to enable this Court to find that Norwalk retained Smithe Furniture. younger, This fact makes it objectively qualified more salesmen. general rule departing from the for ments assume termination;5 cannot thus we his an ex- is unavailable where restitution that have remained ranking Gadsby’s would that parties’ relation- governs the press contract is insuffi- The evidence in 1990. unchanged remedy adequate ship and where for there a basis with Court provide this to cient at law. qualifications objective comparing employees. younger Norwalk those
with III. the ultimately rely on must Thus reasons, we conclude foregoing For the were representatives younger sales that fact sum- properly court entered the district that simply cannot be it But terminated. judgment in favor of Norwalk on both mary the em- ease that enough in a termination count breach-of-contract/procuring cause If younger employees. merely retain ployer age count. and the discrimination any terminated enough, practically were summary on the judgment cross-motion for could make protected class employee properly count was also breach-of-eontract discrimination prima facie case aout Gadsby appeared not to take the denied. least retain at companies will since most seriously appeal, on but remaining claims Accordingly age 40. employees under some properly they any we event hold satisfy even the to Gadsby has failed judgment of the district dismissed. factor of the fourth formulation permissive therefore affirmed. court is therefore, unlike We facie case. prima concurrence, remain- not address the do FLAUM, Judge, concurring in the Circuit Douglas formula. of the McDonnell der judgment of the I concur in the judgment. I cannot separately because I write court. Claims C. Additional majority’s of what analysis agree with the dis properly court The district ease under constitutes Gadsby has claims. Gadsby’s other missed the ADEA. Douglas and McDonnell departing persuasive reasons no provided estop promissory general rule I. contract express where an unavailable pel is the first majority opinion sets forth Gadsby involve cited The eases exists. age dis- prima facie requirements of a three relationships. employment at-will oral as follows: crimination court Therefore, the district agree with pro- (1) of the was a member employee required of the contract the existence (2) over); employ- (age 40 or class estoppel claim. tected promissory of the dismissal employer’s meeting “the merely ee states Gadsby’s brief (8) dis- employee was similarly expectations; and count should be wrongful-discharge These elements charged or demoted. estoppel count] analyzed promissory [to the v. Common- See Sirvidas We well-established. should reached.” the same result F.3d Edison discharge wealth wrongful not consider will Cir.1995); Baxter Healthcare Anderson Gadsby, in violation appeal claim As 1120, 1122 Corp., 28(a)(6), cite has failed Fed.R.App.P. factor, majority notes the the fourth adequately articu authority or relevant has em- this circuit various formulations also will argument for reversal. We late it is it determines ployed; for interference the claim consider requisites unnecessary the exact Gadsby has delineate advantage because prospective discharge situation in a element reversing the fourth any grounds provide failed Specifically, this case. order to resolve Gadsby’s claim for restitution dismissal. whether majority decide declines light properly dismissed also only by re- actual satisfied factor is parties. Gads- fourth contract between express here) (which did not occur argu- placement any persuasive provided by has not termi- for his consideration a valid customer high percentage of Gads- that such 5. The fact *10 Gadsby’s why be- helps customer, demonstrate supra nation single see by’s were to a 1989, 1990, is so critical. than rather relationship havior in souring with that his makes note showing protected problems disclosing em- his confidential informa- whether 3) tion, favorably youn- deteriorating less than his ployee was treated relations with (Smithe). majority employees Norwalk, is sufficient. The ger important customer un- resolution this issue is concludes that explanations can raise these once that, it necessary finds even under passes Gadsby, in the baton to it. order to formulation, Gadsby’s permissive the more case, prima establish a facie should not be Hence, court evidence is insufficient. anticipate every possible forced reason his finds that has failed to establish a employer provide discharge could for his age discrimination. I prima facie case incorporate responses hypo- to all of these respectfully disagree. prima thetical reasons into his facie case. Interpreting legitimate expectations that the first and third It cannot be denied prong prima broadly of the facie case this prima elements of the facie case are satisfied essentially destroy burden-shifting would years was 42 old when this case. Douglas, by conflating feature of McDonnell discharged by my opin- In he was Norwalk. employee’s proving burden of satisfaction ion, Gadsby has satisfied the second also legitimate expectations employ- with the meeting element —that he was Norwalk’s le- providing legitimate, er’s burden of non- gitimate expectations.1 majority As the discriminatoxy reason. notes, “there is substantial evidence that pleased Gadsby’s perfor- Norwalk was brings prong This tous the fourth of the until termination in mance his 1990....” prima majority facie case. The found that it Gadsby presents Supra ample at 1326. ob- accept reject Gadsby’s need not argument jective dramatically evidence—in the form of that, plaintiff where the could demonstrate sales, high ranking among overall increased favorably youn that he was treated less than salespersons,2 and numerous handwritten ger employees, showing replacement management— compliments from Norwalk unnecessary satisfy prong. fourth I meeting than that he was more Norwalk’s accept Gadsby’s argument would and hold job expectations for the he was hired to that, situation, non-replacement in a a show i.e., perform, selling Norwalk furniture to ing discharged plaintiff was treated customers in the area. Norwalk favorably younger employees than this, essentially admits as it does not claim satisfy prong sufficient to the fourth performance was a that sales reason for prima notes, majority facie case. As the Gadsby’s discharge. Consequently, Gadsby’s have sometimes formulated the fourth factor meeting evidence demonstrates that he was requiring replacement by younger per expectations. Norwalk’s Supra son. at 1332. we have also recognized flexibility the need for in estab prima At stage, facie case Norwalk lishing requirements of the McDonnell present objective, contemporane- fails to Douglas prima prima facie case: “The facie demonstrating Gadsby’s ous evidence unsat- (such case ... is a flexible standard isfactory that ‘is not performance as a non-favor- rigidly’ applied.” intended to be performance evaluation), able review or Collier v. Cir.1995) Budd which F.3d undermines substantial evi- (internal omitted); Loyd citation adequate performance. Phillips dence of Norwalk Brothers, Inc., simply points testimony to evidence and 522-23 it Cir. 1994) gathered, goes (rigid legiti- since to the adherence to prescrip formulaic objective beyond job per- proper mate can analysis). tions block reasons — case, discharged particularly formance —for which it claims it prong, the fourth Gadsby. presents adapted three reasons: must differing to the factual cir 1) 2) personality, rude abrasive give cumstances that rise to discrimina- majority express 1. The does not year discharge, a view as to before his legitimate expectations whether met the twenty-nine salesper- was ranked fourth out of factor, apparently finding unnecessary light it ranking comparative sons. The was based on a of its conclusion that the fourth factor could not categories. evaluation of thirteen different be satisfied.
1335 Supra at 1331. 890; “unpersuasive.” Collier, RIF cases at 66 F.3d See claims. tion why meaningful reason no I see F.3d at 523. Loyd, 25 where an case in the situation prima facie the reason, have held we exact For this replaced due discharged and employee not is (“RIF”) that an em- cases in force reduction different in force should be to a reduction in- but replacement, prove not need ployee employee is dis- an the situation where employ- younger only that show need stead other replaced for some charged not favorably. See Col- treated more were ees discharged situations the In both reason. 890-91; Peabody Roper v. lier, F.3d at 66 inference of to raise an employee is unable Cir.1995). (7th 926 47 F.3d Coal by a showing replacement discrimination its company a reduces when This is because is no re- employee, there younger because the replace workforce, does generally it person one In the placement to consider. positions rather discharged employees, situation, fact the discharge/no replacement is shifted and work consolidated often Collier, at more employees 66 F.3d are treated existing employees. younger that other WLS-TV, F.2d 890; of discrimina- favorably v. raises an inference Oxman context, we found In this equal the same inference substantially tion (and, that: which we in RIF cases recognize Oxman, younger a em- the infer- of no employer’s retention is weaker than held job dis- as the employee replaced in the same ployee either where ence raised job for in another plaintiff Therefore, charged person.) by a younger gives qualified plaintiff also was at issue basic considerations are the same that of discrimination to an inference rise situations, logic requires that I believe both in- well-recognized weaker than is no prima facie case be of the the elements employer dis- when an created ference Hence, in the situa- I would hold that same. performing employee who charges an discharged and employee is where an tion a obtains and then seeks adequately and/or younger that em- replaced, a showing replacement. [younger] favorably meets ployees treated Oxman, (quoting Matthews at facie ease. prima prong fourth Allis-Chalmers, 769 F.2d adopt treated majority declines Cir.1985) J., (Flaum, concurring)). We general rule favorably standard situation, that, a RIF a held therefore however, cases; it does single-discharge for treat- employees were showing younger that discrimination of agree the inference enough to favorably is create ed more “where in the situation might be same suf- of discrimination presumption rebuttable responsi- discharged employee is one employer. to the to shift the burden ficient employ- essence, other are absorbed Oxman, we bilities F.2d at 455. ees_” majority’s In the Supra, at 1332. discharged pursu- employees recognized that employee’s view, discharged in force cannot raise the fact a reduction ant to im- necessary employees to es- to other shifted of discrimination duties were inference by showing jobs re- of the dis- case prima fungibility facie between plies tablish a younger person, so we afford- by younger the retained placement employee and charged necessary means. to draw them an alternative employee, ed which is Concluding that discrimination. inference of cases, that citing our RIF Gadsby argues, fails to show instant case the evidence favorably” standard should “treated less by other Gadsby’s duties were absorbed situation, re- he was not in his since apply the treated majority finds salespersons, the majority finds the by Norwalk.3 placed replacement insuffi- time made the replaced apparently period amount Gadsby was 3. We note that argues purposes. He some by 40-year-old prima a short time for facie cient Gads- unnecessaiy was terminated. he can after if replacement 18 months argument Therefore, by, not make the does treatment. favorable show less satisfy the "replacement” is sufficient analysis, I purposes of this assume Apparent- prong case. fourth ly, replaced. was not significant passage concedes *12 favorably inapplicable Gadsby’s responsibilities standard in this less were shifted to oth- Leach, existing employees. er case. Fred Nor- Manager, walk’s National Sales testified that majority agree I the infer- management members of Norwalk’s and oth- by ence raised more favorable treatment of existing representatives er sales alternated premised younger employees is on some de- in covering the needs of in customers Gads- gree interchangeability between the dis- Further, by’s territory. Norwalk did not charged employee younger and the retained Gadsby’s claim as a reason for termination discharged plaintiff employees. The must longer a sales was no qualified that he was for the demonstrate necessary Chicago for the area. younger positions employees retained to show less favorable in order treatment. Finally, majority holds that even if the adopting This was the basis the standard permissive applies, Gadsby’s standard Oxman, in Oxman. See F.2d at 455 inadequate evidence is to show he was treat- above). (quoted Of course a chemist is not favorably. ed my judg- less in qualified position, for mechanic and there- ment, Gadsby’s evidence is sup- sufficient to prove fore could not less favorable treatment port younger, the conclusion that objec- by showing younger retention of a mechanic. tively qualified salespersons were retained. majority’s I therefore do contest agree majority I with the that comparing that, case, single discharge statement in a if Gadsby’s very impressive sales to those of discharged employee and the retained salespersons with different size markets is employee interchangeable are not to a cer- difficult especially helpful and not on its own extent, tain the inference of discrimination is evaluating performance among relative same, however, weak. The is true in the salespersons. However, Gadsby pres- does Consequently, majority’s RIF scenario. comparative ent direct evidence that in 1990 statements, view, my comprise do not (the fired), year he was his sales on a month- meaningful reject reason to the treated less end, year-to-date consistently basis were up favorably single-discharge/no-re- standard in percent 30 to 40 previous year, over the while cases; placement majority’s rather the com- Norwalk’s 1990 sales from other territories ments address whether that standard is sat- consistently percent. down 1.5 to 5 particular isfied case. This is addition to the fact that in 1989 case, (less
Turning I year believe that than a before he was terminated proven necessary available) year inter- ranking the last changeability youn- between himself and the ranking his relative overall among other ger First, employees. retained question I representatives was fourth out of twen- majority’s apparent only ty-nine.4 facts, view that These combined with Gads- way prove necessary fungibility by’s is to “off the charts” sales amounts in his plaintiff’s demonstrate that the territory, duties were his dramatic increase in sales over employees. instance, absorbed other For predecessor, those of his his increase in rela- longer if Norwalk no needed a performance sales- tive ranking years, over the person, Gadsby prove degree could management of fun- compliments he received in gibility by showing fully 1990,5 qualified he was make it a reasonable conclusion that salesperson be the in Milwaukee. im- Gadsby More objectively qualified was more than portantly, there is younger evidence that employees. retained This is majority gives 4. weight By evidence, this evidence completely no be- disregarding the I be- primarily cause Norwalk claims that it was majority inappropriately lieve the weighing "Gadsby’s ultimately 1990 behavior led to summaiy judgment. evidence on termination; thus we cannot assume that Gadsby’s ranking would have remained un- In 1990 received several written com- changed Supra, in 1990.” at 1332-33. We pliments management, including: "FYI! assume, however, should not ing rank- Keeping You're # 1 after popping 1 month. [sic] substantially my have would fallen either. (Jan., those stock orders! opinion, Great Start Mike.” ranking sufficiently the 1989 close in 1990); (Jan., 1990); Gadsby’s discharge holding time to "Great Start” it should "Still performance. 1990). considered evidence of his relative (May, above the # Mike!” (7th Cir.1994); Courtney v. Bio summary judgment trae since especially Inc., sound, infer- and reasonable all facts construe reason i.e., to Norwalk’s first need look We non-moving party, in favor ences Stores, Gadsby has not this burden. met to see Food v. Jewel Gadsby. See Serfecz *13 Cir.1995). (7th 591, 596 F.3d Gadsby rude and claim that was Norwalk’s on two Gadsby’s personality is based evidence had an abrasive argues that Norwalk First, Na treated less Norwalk’s Gadsby was sets of facts. different to show insufficient Leach, Manager, that stated Gadsby to show Fred fails tional Sales favorably because Gadsby was deposition that one reason similar customer his salespersons with younger rude to the he had been confidential disclosure fired was because problems, relations problems company, Ed Gerken. personality president and problems, abrasive particular for conversation favorably. Leach described treated were interrupted Gadsby Gerken. during in the which I discussed reasons pretext, not context, argument reason is Gadsby argues I find this expectations occur, be re- did not but merit; Gadsby not be incident should because the without Gadsby “inconsequential.” em anticipate every reason cause it was quired testimony he that to establish Gerken’s phasizes order Ed come forward with could enough independently he the details that not recall It is could prima facie case. testimony that objectively Leach’s younger, less incident and that demonstrates swear, voice, retained, or do Gadsby he raise his while did not qualified individuals were Gadsby during conversation. Therefore, my physical opinion, anything fired. was further testi ignores Gerken’s Gadsby of discrimina- sufficiently raises an inference Yet mony incident “kind of characterized the “treated adequately meets and tion market, frequently he [Gadsby’s] find that at I would Gads- favorably” standard. behavior in, barge interrupt conversations successfully set forth would any remember hard for me to it would be so age discrimination. Gadsby offer a re not specific time.” does this, that the al except argue sponse to II. truly and should not leged was rude rudeness court, judgment of in the I concur seriously. As we have taken not have been alleged has sever because Norwalk however, the essen past, emphasized for reasons non-discriminatory al was question is not whether tial say Gadsby has I that discharge, and cannot abrasive, but actually rude and not was these all of reasons sufficiently shown that that honestly believed whether Norwalk Nor- age discrimination. pretexts for are Sirvidas, F.3d at rude. See legitimate, non-dis offered three walk Russell, fact 377-78; at 69. The 51 F.3d discharge: criminatory reasons incorrect may made an have that Norwalk 1) personality Gadsby had an abrasive that judgment business or a bad determination 2) rude; disclosed often and was given was a prove that reason does not 3) information; Gads- confidential Kralman See age discrimination. pretext for customer, major relationship with by’s Affairs, Dept. Illinois Veterans’ Furniture, deteriorating. The Smithe Cir.1994). undisputed There Gadsby, must who shifts to then burden high officers two level at least evidence pretextual; reasons are all of these prove that Leach, thought Norwalk, Gerken at legitimate rea one employer needs rude, examples are not and their summary judgment. See to succeed son find their jury could that a so ridiculous Co., 51 F.3d v. Acme-Evans Russell ours) (or Gadsby’s opinion incredible. belief produce Gadsby must not be considered should his conduct a reasonable enough evidence discharge warrant rude or sufficient prof Norwalk’s could infer factfinder this evidence. enough to rebut Gadsby’s termination reasons fered Gadsby’s “abra- testified Leach also unworthy credence. See Sirvi false and ae- jeopardized certain personality” had sive 60 F.3d Edison v. Commonwealth das noted that several customers counts and complain Gadsby. Gadsby about
called in spe-
again present evidence that fails
cifically the factual basis that certain refutes him; complained about called
customers pretextu- only responds that this reason is management had told him to
al because accounts, the accounts
“drop” the so personality. if
jeopardized Yet even endanger specific did not these ac- *14 (because the accounts were not
counts want-
ed), complained the fact that customers about
Gadsby’s personality is a sufficient basis for
management to conclude that had an personality jeopardize and could fu-
abrasive Gadsby presents nothing
ture accounts.
refute this and therefore fails to demonstrate genuine issue of material fact as to whether discharged
he was for his rude and abrasive
personality. sum, pres- has failed to
ent evidence that refutes Norwalk’s basis for abrasive,
believing was rude and simply
because he cannot substitute his own
judgment management, for that of Norwalk’s juror
a reasonable could not conclude that
Norwalk’s claim that was rude and simply pre- and is
abrasive is credible Therefore,
text for discrimination. I judgment
concur in the of the court. STATES,
CENTRAL AND SOUTHEAST
SOUTHWEST AREAS PENSION
FUND, Plaintiff-Appellant, Cross-Ap
pellee, COMPANY,
The SHERWIN-WILLIAMS
Defendant-Appellee, Cross-
Appellant.
Nos. 95-1952 & 95-2028. Appeals,
United States Court of
Seventh Circuit.
Argued Oct. 1995.
Decided Dec. notes perfluous.