Johnson v. Cook Inc.

327 F. App'x 661
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 24, 2009
DocketNo. 08—4255
StatusPublished

This text of 327 F. App'x 661 (Johnson v. Cook Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Cook Inc., 327 F. App'x 661 (7th Cir. 2009).

Opinion

ORDER

Robert Johnson sued Cook Incorporated, a manufacturer of medical equipment, alleging that Cook refused to hire him for an entry-level position because of his age. See 29 U.S.C. § 623(a)(1). The district court granted summary judgment for Cook, and we affirm.

Johnson is no stranger to federal-court litigation. Fourteen years ago he sued a financial services company for age discrimination after he was turned down for an internship offered to recent college graduates contemplating an MBA; Johnson was approximately twenty years out of college and already had a master’s degree. Johnson v. Prudential Inv. Corp., No. 95 C 5513 (N.D. Ill. filed Sept. 26, 1995). Then he sued a temp agency for disability discrimination, claiming that the agency refused to place him because he is missing a number of teeth. Johnson v. Am. Chamber of Commerce Publishers, Inc., 108 F.3d 818 (7th Cir.1997). When Reader’s Digest mentioned that suit in an article about frivolous litigation under the Americans with Disabilities Act, Johnson sued the publisher for defamation. Johnson v. Readers Digest Assoc., Inc., No. 99 C 2920 (N.D. Ill. filed May 3, 1999). Most recently he sued a women’s advocacy group for gender discrimination after the organization declined to hire him as a counselor serving female victims of domestic violence. Johnson v. Apna Ghar, Inc., 330 F.3d 999 (7th Cir.2003). Each case ultimately settled. On top of all these, after Johnson flunked out of law school, he sued the school and its faculty under a number of theories. Johnson v. Detroit Coll, of Law, 1992 WL 363609 (6th Cir. Dec. 9, 1992) (unpublished opinion).

Johnson’s allegations in this case mirror those of his first suit. In 2005, when he was 56, Johnson answered a classified ad inviting candidates “who have recently or are about to graduate from college” with a degree in business or biology to apply for a training program for Cook’s entry-level sales representatives. Cook targets applicants with little or no sales experience; after completing the training program, the new sales representatives assist experienced sales staff and fill temporary openings before they are given their own territory. Johnson submitted a resume that touted his “[tjwenty years of sales, demonstrating, teaching, administrative, and clerical experiences” and disclosed that he graduated from college in 1978.

Cook hired nine new employees for the training program. When Johnson learned that he was not one of them, he brought this action after exhausting his administrative remedies. Johnson conceded in the district court that he lacked direct evidence of age discrimination, and the district judge concluded that his evidence at summary judgment also failed to establish a prima facie case under the indirect method of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court reasoned that Johnson is not similarly situated to the younger hires.

A plaintiff proceeding under the indirect method must first establish a prima facie case; if the plaintiff does so, the employer then must articulate a legitimate reason for its adverse action. See id. at 802, 93 S.Ct. 1817; Jackson v. City of Chi, 552 F.3d 619, 622 (7th Cir.2009). When the plaintiffs claim is that age was the reason he was turned down for a job, he [664]*664■will make out a prima facie case if he was over 40 years old and, though qualified for the job, was rejected in favor of substantially younger, yet otherwise similarly situated, applicants. See Jordan v. City of Gary, Ind., 396 F.3d 825, 833 (7th Cir. 2005); Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 675 (7th Cir.2003).

At summary judgment counsel for Cook described Johnson as “at least minimally qualified” but also maintained that he was not similarly situated to the successful applicants because relative to them, he was “overqualified.” Cook presented evidence that unlike the persons hired, Johnson did not possess the threshold attributes Cook required: he was not a recent college graduate, and by his own boasts, he had far more than “little or no” sales experience. One of Cook’s human-resources managers testified by affidavit that although he no longer could recall reviewing Johnson’s resume, it was company policy to hire only candidates with little or no sales experience for the entry-level positions. The company believed, he explained, that applicants with extensive sales experience would be less likely to embrace Cook’s training and sales methods. Since Johnson was, as Cook’s counsel put it, “overqualified for the internship-like position,” company practice dictated rejecting his application.

Johnson moved to strike the witness’s affidavit and disputed the assertion that a lack of sales experience was a necessary qualification. Johnson argued that the job posting does not specify that prior sales experience would disqualify candidates and noted that many of the hires had been employed previously, some even in “sales.” But the district court agreed with Cook that Johnson’s experience and time out of college (along with several other factors) rendered him unsuitable compared to the successful applicants and prevented him

from establishing a prima facie case of discrimination.

On appeal Johnson contends that the human-resources manager had no present recollection of reviewing his resume, and thus the witness’s affidavit should have been disregarded as not based on personal knowledge. But Johnson confuses lack of memory with lack of involvement. The witness did evaluate Johnson’s application, along with thousands of others; he was certain that he looked at Johnson’s application because his name appears on the rejection letter. He thus had personal knowledge of the events leading to Johnson’s elimination from consideration, even if he did not later recall what he knew. That situation, however, is anticipated by Federal Rule of Evidence 406, which allows a witness unable to recall a person or organization’s conduct at a specific moment to testify as to the actor’s routine practice in order to establish that the conduct in question was in keeping with that practice. Fed.R.Evid. 406; Babcock v. Gen. Motors Corp., 299 F.3d 60, 66 (1st Cir.2002). That is precisely what occurred here: The human-resources manager did not remember specifically rejecting Johnson’s application, but he testified that his routine practice was to reject candidates like Johnson who were not recent graduates and had too much sales experience for the entry-level position.

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327 F. App'x 661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-cook-inc-ca7-2009.