Henry WOLF, Plaintiff-Appellant, v. BUSS (AMERICA) INC., Defendant-Appellee

77 F.3d 914, 1996 WL 67469

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 17, 1996
• Docket: 95-1790
• Status: Published

Opinions

HARLINGTON WOOD, Jr., Circuit Judge.

Alleging that his dismissal constituted unlawful age discrimination, Henry Wolf filed suit against his former employer, Buss (America) Inc. (“Buss America”) pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. The district court granted Buss America’s motion for summary judgment after it concluded that Wolf had failed to produce sufficient evidence demonstrating that Buss America’s proffered reasons for his termination were pretextual. Upon review, we affirm the result achieved in the district court.

I. BACKGROUND

Wolf, a Swiss national, was born on November 27, 1938. He began working as an engineer for Buss AG, a Swiss company, in 1961. Buss AG manufactures and sells equipment used in the plastics industry. By all accounts, Wolf performed his job admirably and was promoted first to service manager and later to chief service engineer. Wolfs duties included overseeing the installation and start-up of production plants around the globe. He also rendered various consulting services to Buss AG’s customers.

In light of Wolfs expertise and experience, the appellee — Buss AG’s U.S. subsidiary — asked Wolf to transfer to the United States. Wolf initially declined, but negotiations were eventually entered into and Wolf subsequently began working for Buss America as a service engineer, at the age of 50, in September 1989. Then, in December 1991, when he was 53 years old, Wolfs employment with Buss America was terminated. Buss America asserted that a financial downturn compelled it to reduce its staff of service engineers from three to two. One of the remaining service engineers, George Bracikowski, was 34 years of age at the time of Wolfs termination. The third service engineer, Klaus Erlewein, was 51 years old at the time of Wolfs dismissal.

Wolf subsequently filed suit under the ADEA. While Wolf concedes that the financial downturn presented a legitimate reason to fire someone, he contends that Buss America’s decision to fire him, and not Braci-kowski, constituted an act of unlawful age discrimination. Buss America responded by filing a motion for summary judgment, in which it denied Wolfs allegations of discriminatory intent and proffered several nondiscriminatory reasons for Wolfs termination. Wolf filed a response, disputing Buss America’s stated reasons. The district court granted Buss America’s motion for summary judgment after it concluded that Wolf had failed to fully and adequately address the reasons proffered for his dismissal. This appeal followed.

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment by considering all factual inferences in the light most favorable to the nonmoving party (herein Wolf) and determining de novo whether there exists any genuine issue of material fact requiring submission of the case to the finder of fact or whether judgment as a matter of law was appropriate. Fed.R.Civ.P. ’56(c); Colburn v. Trustees of Indiana Univ., 973 F.2d 581, 585 (7th Cir.1992). We note further that “[tjhis standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues.” Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993) (citations omitted).

III. DISCUSSION

In order to show a violation of the ADEA, Wolf must demonstrate that his age was “a determining factor” in Buss America’s decision to terminate his employment. Smith v. Great Am. Restaurants, Inc., 969 F.2d 430, 434 (7th Cir.1992) (citations omitted). Wolf need not demonstrate that age was the sole reason for his discharge; rather, he need only prove that but for Buss America’s motive to discriminate against him on the basis of his age, he would not have been fired. La Montague v. American Convenience Prods., Inc., 750 F.2d 1405, 1409 (7th Cir.1984) (citation omitted).

There are two manners of proof available to an employee in this regard. First, the employee may allege that direct evidence proves that age was a determining factor in the employer’s decision to terminate him. Id. (citations omitted). Alternatively, the employee may proceed under the indirect, burden-shifting method of proof first articulated for use in Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later adapted for use in age discrimination cases. Since Wolf has not introduced any direct evidence which might indicate that Buss America discriminated against him on the basis of age, Wolfs suit must rely on the indirect, burden-shifting method.

At the first stage of this method, the burden rests upon the employee to establish the four elements of a prima facie case of age discrimination. In a reduction in force case, such as this one, the employee must show that: (1) he was in the protected class (persons between the age of 40 and 70); (2) he was doing his job well enough to meet his employer’s legitimate expectations; (3) in spite of his performance, he was discharged or demoted; and (4) the employer treated other persons, not in the protected class, more favorably. Oxman v. WLS-TV, 846 F.2d 448, 455 (7th Cir.1988) (citations omitted). Buss America concedes, for the purpose of resolving its summary judgment motion, that Wolf can establish his prima facie case.

The establishment of a prima facie case creates a rebuttable presumption of discrimination. Weihaupt v. American Medical Ass’n, 874 F.2d 419, 426 (7th Cir.1989) (citations omitted). The burden of production¹ then shifts to the employer to articulate a legitimate and nondiscriminatory reason for the employee’s termination. Id. If the employer is able to dissolve the presumption of discrimination in this fashion, the burden shifts back to the employee to show, by a preponderance of the evidence, that the proffered reasons are pretextual. Sarsha, 3 F.3d at 1039 (citation omitted). Pretext means more than a mistake on the part of the employer; pretext “means a lie, specifically a phony reason for some action.” Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.1995). There are two methods of showing pretext: “Pretext may be established directly with evidence that [the employer] was more likely than not motivated by a discriminatory reason, or indirectly by evidence that the employer’s explanation is not credible.” Sarsha, 3 F.3d at 1039 (citations omitted).

Wolf has not introduced any direct evidence of pretext. We must therefore determine whether Wolf has, viewing the evidence in the light most favorable to him, succeeded in showing that Buss America’s proffered reasons are not credible. This showing may be made by introducing evidence that demonstrates that (1) the proffered reasons are factually baseless; (2) the proffered reasons were not the actual motivation for the discharge; or (3) the proffered reasons were insufficient to motivate the discharge. Weihaupt, 874 F.2d at 428 (citations omitted).

It is not sufficient, however, for the employee to show that the employer acted incorrectly or undesirably by firing him; the employee must show that the employer did not honestly believe in the reasons it gave for firing him. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir.1992) (citations omitted). In an ADEA case, we “do[ ] not sit as a super-personnel department that reexamines an entity’s business decisions. The question is not whether the [employer] exercised prudent business judgment, but whether [the employee] has come forward to refute the articulated, legitimate reasons for his discharge.” Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.1986) (internal citations omitted), cert. denied, 479 U.S. 1066, 107 S.Ct. 954, 93 L.Ed.2d 1002 (1987).

In this case, Buss America proffered six primary reasons in its motion for summary judgment to justify its decision to terminate Wolf, instead of either of the two other sendee engineers: (1) Wolf had trouble with the way things were done at Buss America and made complaints to the parent company; (2) Wolf was dilatory in obtaining a home telephone; (3) Wolf failed to write his service reports in a timely fashion; (4) Wolf behaved arrogantly towards customers; (5) Wolf failed to call Buss America often enough while he was out on service calls; and (6) Wolf was excessively talkative. On their face, these reasons are legitimate and non-discriminatory and thus sufficient to dissolve the presumption of discrimination.

Therefore, Wolf must raise an issue of fact regarding each of the reasons proffered for his dismissal or suffer the affirmance of the district court’s grant of summary judgment. See Russell, 51 F.3d at 69 (“The fact that some of [the employer’s proffered] reasons were successfully called into question by Tthe employee’s] deposition or affidavit does not defeat summary judgment if at least one reason for [the adverse employment action] stands unquestioned.”). Wolf may still prevail, however, even if he does fail to cast doubt upon all of the proffered reasons: “There may be cases in which the multiple grounds offered by the defendant for the adverse action of which the plaintiff complains are so intertwined, or the pretextual character of one of them so fishy and suspicious, that the plaintiff could withstand summary judgment.” Id. at 70.

After reviewing the record, we conclude that Wolf has raised material issues of fact regarding several of Buss America’s proffered reasons. We further conclude, however, that these doubtful reasons are neither “so intertwined,” nor “so fishy and suspicious” as to call the remaining reasons into doubt. Id. Accordingly, we find that Wolf has failed to carry his burden.

A. Credible Reasons for Wolfs Dismissal

1. Wolfs Complaints to Buss AG

Buss America first contends that its decision to terminate Wolf was partially justified in light of Wolfs dissatisfaction with the conditions at Buss America and Wolfs ensuing complaints to Buss America’s parent company, Buss AG. More particularly, Buss America averred that Wolf reported directly to certain individuals at Buss AG and made unfavorable comparisons between Buss America and Buss AG’s respective operations. Wolf admits that he contacted Buss AG on at least two occasions, but he asserts that his criticisms were constructive, and that both contacts resulted in favorable changes at Buss America.

By claiming that his suggested changes were ultimately beneficial, however, Wolf misses the point. Buss America does not claim that it was particularly troubled by the content of Wolfs communications to Buss AG. Rather, Buss America alleges that it was the occurrence of these communications which it found troubling. The fact that Wolf conducted these communications indicated, in Buss America’s view, that Wolf had failed to adequately sever his ties with Buss AG — this situation, in turn, allegedly hindered Wolfs ability to adapt to the new environment of Buss America.

Wolf further adds that he was not criticized at the time he made his suggestions'— approximately nineteen months before his dismissal. Buss America does not argue, however, that Wolfs actions were so opprobrious as to call for his immediate dismissal. Rather, Buss America asserts that it was only after an economic downturn — a development which Wolf does not dispute — forced it to fire one of its three service engineers that it dismissed Wolf as the least desirable of the three. Therefore, we conclude that Wolf has failed to raise an issue of material fact regarding this reason.

2. Wolfs Failure to Write Timely Service Reports

Buss America also asserts that Wolf failed to complete his required service reports in a timely fashion. Wolf wholly denies this allegation, claiming that he completed his service reports on a daily basis. The district court, however, found that Wolf had failed to show pretext on the issue of the propriety of his service reports in light of Wolfs admitted practice of completing his reports in German instead of in English. In making this finding, however, the district court went beyond the face of Buss America’s motion for summary judgment and Local Rule 12(m) statement of material facts, and looked to the deposition testimony of Frank Rauch, Buss America’s service manager. In his deposition, Rauch testified that Wolfs German-language reports were largely useless to Buss America and that he had asked Wolf many times to write his reports in English. Wolf argues that the district court erred by looking beyond the parties’ pleadings to the record of the ease in this fashion.

As Buss America correctly argues, however, Rule 56(c) of the Federal Rules of Civil Procedure does not limit a district court’s consideration of a summary judgment motion to the content of the parties’ pleadings. Rather, Rule 56(c) directs the court to examine “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” See also Board of Nat’l Missions of Presbyterian Church in the United States v. Smith, 182 F.2d 362, 364-65 (7th Cir.1950) (“The fact that the [summary] judgment was granted on a reason different from that assigned by the defendant is immaterial, where, as here, the motion was properly granted on the undisputed facts shown and on an issue presented by plaintiffs complaint.”); Wilder v. Prokop, 846 F.2d 613, 626 (10th Cir.1988).²

Rauch’s deposition, which the district court was privileged to consider, indicates that Wolfs practice of writing his reports in German was viewed as problematical by Buss America, and that this concern was communicated to Wolf. Wolf has admitted to writing his reports in German, at least initially. It seems clear to us that the completion of Wolfs reports in an unacceptable language would adversely impact the “timeliness” of those reports as they would not be immediately comprehensible to most of Buss America’s other employees. Consequently, we conclude that Wolf has failed to show pretext on this issue.

B. Reasons for Wolfs Dismissal Which are Not Credible

Wolf has not, however, utterly failed in his endeavor to raise issues of material fact regarding Buss America’s reasons for his dismissal. We find that Wolf has succeeded in calling the remaining four reasons proffered by Buss America into doubt.

1. Wolfs Dilatoriness in Obtaining a Home Telephone

Buss America argues that its decision to terminate Wolf was driven, in part, by Wolfs failure to obtain a telephone at home when he was told to do so. Wolf admits that he was told to obtain a home telephone on at least two or three occasions, and that it nonetheless took him approximately five or six months, after he was hired, to do so. Wolf justifies his delay by claiming that, before he obtained a home telephone, Buss America never contacted him on those occasions when he did have access to a phone— e.g., when he stayed at a hotel — and that Buss America never contacted him at home after he obtained a phone. Wolf claims, moreover, that he had concluded, in light of the frequency with which he was away from home and the allegedly casual manner in which Buss America made its repeated requests, that his having a home telephone was not important to Buss America.

Buss America, in turn, argues that it did regard a home telephone as important. Rauch testified in his deposition that Wolfs lack of a phone forced him to travel to Wolfs home on several occasions in order to communicate with Wolf.

As we have previously noted in a similar situation, “[w]e cannot resolve the conflict between these two positions without deciding which side to believe. On summary judgment, a court can neither make a credibility determination nor choose between competing inferences. Rather, these are functions for a jury.” Sarsha, 3 F.3d at 1041 (internal citations omitted). Thus, we conclude that there does exist a genuine question regarding whether the failure to promptly obtain a home telephone was sufficient, in part, to motivate Wolfs discharge.

2. Wolfs Arrogance to Customers

Buss America additionally contends that Wolf exhibited an “arrogant” attitude about Buss America’s products and himself to its customers. In his Local Rule 12(n) response, Wolf generally denied that he was ever arrogant to customers about anything. The district court, however, found that Wolf had failed to raise a question of material fact on this issue because he failed to deny Rauch’s contention, contained in his deposition, that Wolf had acted arrogantly by leaving a worksite on one or more occasions when a customer’s representative failed to promptly meet with him. In effect, the district court applied sub silentio its Local Rule 12(n)³ and concluded that Wolf had admitted to leaving worksites by failing to specifically deny this charge.

Although we have upheld the strict application of Local Rule 12(n), see Schulz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir. 1992), we conclude that the district court has erroneously applied it in this instance. Under the operation of Local Rule 12(n), the party opposing summary judgment is deemed to have admitted, through failure to controvert, only those facts set forth in the moving party’s Rule 12(m) statement. Here, Buss America’s Rule 12(m) statement avers only generally that Wolf exhibited arrogance towards customers; the specific contention that Wolf arrogantly left worksites is contained in Rauch’s deposition. Thus, Wolfs general denial is all that is needed to raise a question of material fact on this issue.⁴

3. Wolfs Failure to Phone-in When on Service Calls

Buss America further argues that Wolf failed, despite frequent requests, to regularly phone the office while he was out on service calls. Buss America acknowledges that Wolf occasionally phoned, particularly when he needed to order parts, but it claims that Wolf repeatedly ignored the company’s request to phone on a regular basis — whether or not a problem was encountered.- Wolf disagrees and claims in his Rule 12(n) response that he “always” called the office after completing an out-of-town assignment unless he happened to finish his assignment after Buss America’s office had closed, in which case he would call the next day.

The district court, however, declined to credit Wolfs denial after it found that it was contradicted by Wolfs deposition testimony. When asked whether Rauch had ever raised the issue of phoning-in while on service calls, Wolf responded:

We had once a friendly chat, and then he said “you have to learn to use the telephone.” I laughed and said, “why,” and then he said to me, “Henry, sometimes we will be glad if you would phone us what’s going on.”

And then I returned him. I remember that one. I returned him, “look, Frank, you sitting in your office five, ten centimeters in front of your phone. I’m in the workshop, black, greasy, oily, why can you not phone me, please.”

In his brief before this court, Wolf claims that this testimony related only to one specific instance and that it does not contradict his Rule 12(n) statement.

Viewing this testimony in the light most favorable to Wolf, as we must, we agree. The testimony quoted above is simply too vague for us to arrive at any definite conclusion as to its meaning. It may well be referring to a single instance in which Wolf failed to call because he did not finish his assignment until after Buss America’s office had closed for the day. Accordingly, we find that Wolf has also raised a question of material fact on this issue.

f Wolfs Excessive Talkativeness

Buss America last alleges that Wolfs presence at the office was overly disruptive due to Wolfs proclivity for storytelling. Wolf responds by stating that he was away from the office for the majority of the time and that, in any event, he was no more conversational than anyone else at the office. In support of their respective positions, the parties offer nothing more than the strength of their word. As is the case regarding the importance of promptly obtaining a home telephone, we cannot resolve this conflict without making a credibility determination. Sarsha, 3 F.3d at 1041.

IV. CONCLUSION

Wolf has successfully demonstrated that genuine issues of material fact exist regarding four of the six reasons proffered by Buss America for his dismissal. We conclude, however, that Wolf has ultimately failed to carry his burden of showing pretext because the four reasons which he has successfully called into question are neither “so intertwined,” nor “so fishy” as to call the remaining two reasons into doubt. Russell, 51 F.3d at 70. We recognize that Buss America has not contended that the two remaining reasons would be sufficient, standing alone, to justify Wolfs dismissal. Indeed, Buss America was aware of the two reasons it now cites for well over a year before Wolfs termination. These two reasons only became sufficient after Buss America was hit by an economic slowdown that necessitated the firing of one of its three service engineers. Thus, the “intertwining” at work here takes place not among the six reasons per se, but rather among these reasons and the economic slowdown.

It is true that Buss America chose to fire Wolf instead of Bracikowski, the youngest service engineer. Wolf, however, has not produced any evidence that Bracikowski engaged in the same behavior as was proffered for Wolfs dismissal, nor has Wolf challenged those attributes of Bracikowski’s which Buss America labeled as positive — namely, his enthusiasm, eagerness, and basic mechanical skills. Furthermore, we feel that it is not insignificant that Wolf was initially hired by Buss America at the age of 50 — fully ten years into the protected age group. This fact, although not conclusive, is somewhat indicative of Buss America’s lack of discriminatory intent.

The picture that emerges here is of an employee who was, overall, competent and diligent. Unfortunately, Wolf also possessed — in Buss America’s view — a few, minor flaws. These flaws were not serious enough to call for Wolfs immediate dismissal, but when Buss America was faced with an undisputed economic slowdown these flaws naturally figured into Buss America’s decision regarding which service engineer to let go. The facts which accompany age discrimination cases are never heartwarming. The AJDEA, however, is not a form of job insurance for older employees. “The market, like the jungle to which it is sometimes compared, is pitiless. Nothing in the age discrimination law provides tenure to competent older workers. They can be let go for any reason or no reason, provided only that the reason is not their age.” Partington v. Broyhill Furniture Indus., Inc., 999 F.2d 269, 271 (7th Cir.1993).

For the reasons set forth above, the decision of the district court to grant Buss America’s motion for summary judgment is affirmed.

Affirmed.

1 . The burden of proof, however, always remains with the employee.

2 . The dissent disagrees with this summation of the law and cites in support Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir.1989), and Hartman v. Board of Trustees of Community College Dist. No. 508, 4 F.3d 465 (7th Cir.1993). In Malhotra, wc reviewed the dismissal of a suit for ethnic discrimination. The district court had granted the defendant’s motion for summary judgment after concluding that the plaintiff had failed to establish a threshold showing of discrimination. Wc reversed, however, because the defendant’s motion had solely addressed the purely legal ground that the claim was time-barred. As we stated: ”[I]t was not Malhotra’s burden to produce evidence concerning claims as to which [the defendant’s] sole ground for summary judgment was the statute of limitations.” Malhotra, 885 F.2d at 1310. In Hartman, wc likewise criticized the district court's decision to dismiss a claim on the merits where the defendants' motion for summary judgment had contested the claim from a purely legal standpoint: "Because defendants' arguments did not attack the factual predicate of Hartman’s claim, she was under no obligation to improve on it by adducing more specific facts, and the claim should not have been dismissed for her failure to do so.” Hartman, 4 F.3d at 469.

These cases arc to be distinguished from the present matter. Here, Buss America’s motion for summary judgment squarely addresses the merits of Wolf’s claim. Faced with such a motion, a district court is privileged to consider any additional evidentiary material contained in the record which bears on the claim.

3 . Local Rule 12(n) provides, in pertinent part: “All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party."

4 . This situation is to be distinguished from the one involving Wolf’s failure to write timely service reports, discussed supra. It is true that there we upheld the district court's decision to look to the record as a whole in order to reach the conclusion that writing reports in German was an admission of untimelincss. However, that instance involved an express admission by Wolf in his deposition that he had written his reports in German, at least initially. If Wolf had also admitted in his deposition to leaving work-sites when not promptly met by customers, then the district court would also have been privileged to consider this fact. Wolf did not, however, make any such express admission and, since Buss America’s Rule 12(m) statement does not raise this specific issue, Wolf's failure to controvert it in his Rule 12(n) response cannot serve as an admission.