Achor v. Riverside Golf Club

• Decision Date: 24 June 1997
• Docket Number: No. 96-3520,96-3520
• Citation: 117 F.3d 339
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 289, 70 Empl. Prac. Dec. P 44,789 Gerald L. ACHOR, Plaintiff-Appellant, v. RIVERSIDE GOLF CLUB and Robert White, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 339

117 F.3d 339

74 Fair Empl.Prac.Cas. (BNA) 289,

70 Empl. Prac. Dec. P 44,789

Gerald L. ACHOR, Plaintiff-Appellant, v. RIVERSIDE GOLF CLUB and Robert White, Defendants-Appellees.

No. 96-3520.

United States Court of Appeals Seventh Circuit.

Argued May 30, 1997.

Decided June 24, 1997.

Claudia Oney, Danielle L. Weiss (argued), Chicago, IL, for Plaintiff-Appellant.

Robert M. Chemers, Scott L. Howie (argued), John J. Walsh, III, Pretzel & Stouffer, Chicago, IL, for Defendants-Appellees.

Before EASTERBROOK, RIPPLE, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

About 90 pounds of meat vanished from a cooler at the Riverside Golf Club one evening. There were no signs of forced entry, and nothing else was missing; this was an inside job. Robert White, the Club's manager, concluded that heads would roll, and he feared that unless he found the culprit the severed neck would be his own. Four people in addition to White had keys to the meat cooler. Gerald Achor, a bartender, was responsible for locking the Club at night, and as the last employee on the premises he was in the best position to make off with such cumbersome booty. White discussed the theft with each of the other four key-holders sequentially, ending with Achor. During the meeting, Achor turned in his keys; he left the Club, never to return. Achor contends that White asked him to take the blame, because he was the oldest of the five key-holders and had the best pension, and that when he refused he was fired; White contends that Achor resigned to avoid investigation. This suit under the Age Discrimination in Employment Act turns on who told the truth. If Achor quit, the Club prevails; if White sacked him because of his age, then Achor wins.

Unfortunately, the magistrate judge (who the parties agreed could conduct the trial and enter judgment in the district judge's stead, see 28 U.S.C. § 636(c)(1)) gave the jury a set of instructions much too complex for a swearing contest. The judge instructed the jury at length that there are two ways to prove allegations of discrimination, "direct" and "indirect." Each, according to the instructions, requires the plaintiff to prove some number of "essential elements" (three for one method, four for the other) and added that "[i]f the plaintiff has failed to prove one or more of these facts, you must find for the defendant." This naturally posed the question, which the instructions did not address: Who wins if the plaintiff shows the elements of one method, but not of the other? Long instructions also set up the possibility of disagreements over matters that may be terminological but could be substantive. Here the parties locked horns on the question whether the fourth element of the indirect method should be "[a] younger person was hired in plaintiff's place" (the Club's proposal) or "[p]laintiff was replaced by a younger person" (Achor's proposal). The judge sided with the Club. He also gave four instructions about the doctrine of at-will employment in Illinois, which does not excuse age discrimination and was otherwise of tangential relevance. One of these instructions unhelpfully told the jury that "[a]n employment-at-will relationship gives an employer the right to terminate the employment at any time, subject to Section 623 and 631 of Title 29 of the United States Code." Even lawyers do not have 29 U.S.C. §§ 623 and 631 memorized. Although another instruction quotes these parts of the ADEA, a judge should tell jurors what their practical tasks are under the law, rather than providing raw legal texts for jurors to digest.

None of this was necessary. After some preliminaries, the judge told the jury:

[I]t is Plaintiff's burden to prove by a preponderance of the evidence that he was discharged by Defendant because of his age. In order for you to determine whether Plaintiff was discharged because of his age, you must decide whether Defendant would have fired Plaintiff had he been younger than 40 and everything else had remained the same.

This instruction, adapted from Gehring v. Case Corp., 43 F.3d 340, 344 (7th Cir.1994), framed the only important question, making the remaining instructions otiose. Even this instruction could have been improved--by substituting the parties' names for the placeholders "Plaintiff" and "Defendant", and by deleting "than 40", because the ADEA forbids discrimination against older persons within the protected group as well as discrimination against all those over 40. See O'Connor v. Consolidated Coin Caterers Corp., --- U.S. ----, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996); Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir.1996). But no one proposed emendations, and, once this instruction had been given, the remaining instructions did more to misdirect attention than to help the jury decide this cardinal issue.

What role do the direct and indirect means of proving discrimination, with their multiple sub-elements, play once the jury has taken up the question posed in the instruction we just quoted? A judge might usefully direct the jury's attention to some issues that support an inference one way or the other, such as whether the managers made remarks implying antipathy to older workers, or the age of a person's replacement, but factors that support an inference of discriminatory intent are neither necessary nor sufficient, as the instructions in this case imply. Cf. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Both the Supreme Court and this court have stressed that the elements that make up a "prima facie case" are for the judge, not the jury. See Postal Service v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981); Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir.1996); Gehring, 43 F.3d at 343. A judge who concludes using this framework that the evidence could support a verdict for the plaintiff lets the jury deliberate; once the judge has made this decision, it is unnecessary to tell the jury to trace the same intermediate steps. Indeed, the distinction between "direct" and "indirect" methods is useful more as a heuristic than as a rule of law. See Troupe v. May Department Stores Co., 20 F.3d 734, 736-37 (7th Cir.1994). "Direct" and "...