Shank v. Kelly-Springfield Tire Co.

• Citation: 128 F.3d 474
• Decision Date: 01 October 1997
• Docket Number: KELLY-SPRINGFIELD,No. 96-4011,96-4011
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 36, 72 Empl. Prac. Dec. P 45,046 Robert W. SHANK, Plaintiff-Appellee, v.TIRE COMPANY, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 474

128 F.3d 474

75 Fair Empl.Prac.Cas. (BNA) 36, 72 Empl.

Prac. Dec. P 45,046

Robert W. SHANK, Plaintiff-Appellee, v. KELLY-SPRINGFIELD TIRE COMPANY, Defendant-Appellant.

No. 96-4011.

United States Court of Appeals, Seventh Circuit

Oct. 1, 1997.

Mary E. Kennelly (argued), Fox & Fox, Madison, WI, for Plaintiff-Appellee.

Michael H. Auen (argued), Anita M. Sorensen, Foley & Lardner, Madison, WI, foe Defendant-Appellant.

Before POSNER, Chief Judge, and BAUER and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Robert Shank was terminated by Kelly-Springfield Tire Company in November 1994. Kelly-Springfield said it fired him because Mr. Shank filed a fraudulent claim for a refund in contravention of company policy. Mr. Shank said the real reason was his age and brought this suit under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. After the jury returned a verdict in Mr. Shank's favor, Kelly-Springfield moved for a judgment as a matter of law or, in the alternative, for a new trial. The motion was denied. Kelly-Springfield now appeals. For reasons that follow, we reverse the judgment of the district court.

I BACKGROUND

Kelly-Springfield, which is owned by The Goodyear Tire & Rubber Company, sells and manufactures tires. It hired Mr. Shank in 1984 as a district manager, a position which Mr. Shank occupied until his termination in 1994. As a district manager, Mr. Shank was responsible for cultivating sales relationships with tire dealers in his district. His basic job responsibility was to get more tire dealers to sell more Kelly-Springfield tires. Mr. Shank was terminated on November 3, 1994, when he was 53 years old. The company claims it fired Mr. Shank because he submitted a fraudulent claim for a refund. Other than the admitted fraud, Mr. Shank's job performance generally had been acceptable. After he was terminated, Mr. Shank was replaced by James Lautzenheiser (or Lautzenhauser). Lautzenheiser, who took over Mr. Shank's job in January 1995, was about 20 years younger than Mr. Shank.

Mr. Shank admits that he attempted to defraud the company in July 1994. One of the dealers in Mr. Shank's district was Westside Wholesale Tire & Supply Inc., located in Hamel, Minnesota. Westside Wholesale had been reluctant to stock Kelly-Springfield's hydroguard tire because that particular brand of tire is a rain tire that did not sell well in the northern midwest, where most customers are concerned about traction on snow and ice. In order to persuade Westside Wholesale to stock the hydroguard tire, Mr. Shank decided to sell Shawn Leuer, the dealer, a discounted set of hydroguards so Leuer could try them out. The Goodyear Business Conduct Policies, however, prohibited Mr. Shank from selling tires to dealers at a discounted price. ¹ Ex. 207 at 5. Mr. Shank and Leuer, therefore, devised a scheme that, if successful, would allow such a sale to go through unnoticed by Kelly-Springfield. First Leuer paid the money for the tires. Then a Westside Wholesale invoice, dated July 26, 1994, was made out that purported to evidence that four hydroguard tires had been sold to Mr. Shank by Westside Wholesale. Mr. Shank attached the invoice to a "Tire Purchase Refund Request" and sent it along to his supervisor, Ronald The plan, however, was foiled when Thrasher received the refund request in August. He suspected fraud because Westside Wholesale was seven hours from Mr. Shank's home; Thrasher thought it strange that Mr. Shank would travel such a long distance for tires for personal use. Thrasher relayed his suspicions to his supervisor, Vice President Frank James, who told him to call the dealer. Thrasher did so and verified that Mr. Shank had not been the one who purchased the tires. James then told Thrasher to sign the refund form and send it to him. James retained the original form and did not process it for payment or send it to the accounting department. Thrasher also retained a copy on which he noted, "completed after Frank told me to." Ex. 8. James testified that he agreed with Thrasher that, because of the fraud, Mr. Shank should be discharged; accordingly, James authorized Mr. Shank's termination. Mr. Shank, however, was not fired until November 3, 1994. James testified that, in late October or early November, Thrasher called and wanted to move forward with Mr. Shank's termination. Upon being told that Mr. Shank was still working for the company, James was "a little taken back because I assumed that it [Mr. Shank's discharge] had been done." Tr. at 2-148. Thereafter, on November 3, 1994, Thrasher fired Mr. Shank as James had directed. No mention was ever made of Mr. Shank's age by Thrasher, James or anyone else associated with Kelly-Springfield.

                Thrasher. 2  Mr. Shank explained at trial that he had planned to get a rebate from the company and then pass it along to Leuer.  Leuer would get a bargain on the tires, and Mr. Shank would get, he hoped, a new customer
                

In mid-November James made a request to Thomas Nelms, the manager of sales training for Kelly-Springfield, for a replacement for Mr. Shank. James did not request a specific person, but rather the best qualified individual. Nelms assigned Lautzenheiser to replace Mr. Shank. Because Lautzenheiser was not adequately prepared in November, he did not take over Mr. Shank's duties until January 1995. In the meantime, Thrasher was responsible for Mr. Shank's district. Lautzenheiser had been hired as a sales trainee in June 1994.

Mr. Shank sued Kelly-Springfield alleging that he was fired on account of his age. The trial lasted one day. During the plaintiff's case, three witnesses--Mr. Shank, James and Nelms--testified, and three deposition summaries were read to the jury. Mr. Shank admitted filing a rebate form that contained untruthful representations. He confessed that he was seeking a refund for money he had not spent, that he had no authority to give Leuer a refund, and that he had not sought approval for the deal. A summary of Thrasher's deposition was also read to the jury. The summary included a description of Thrasher's treatment of Kevin Harper, a younger district manager. Harper had been criticized for submitting untimely expense reports, charging phone calls to his Goodyear credit card and running past-due on his corporate Visa card. Harper had not been threatened with termination.

Kelly-Springfield called James to testify during its case and, at the first available break, moved for judgment as a matter of law. The district court expressed some real doubts about whether Mr. Shank had presented enough evidence to get to a jury. The court noted that James had testified that he had wanted Thrasher to fire Mr. Shank in August. James had been surprised in October to learn that Thrasher had not. However, because this latter testimony had been drawn out during the presentation of the defendant's case, the court denied the motion. Kelly-Springfield then rested its case and, based on all the evidence (including James' testimony), renewed its motion, but the court reserved ruling and decided to allow the case to go to the jury. During the rebuttal closing argument, Mr. Shank's counsel explained some exhibits to the jury that purportedly showed that, within a year of Mr. Shank's termination, all district managers over the age of 50 were no longer with the company. The only district manager in Mr. Shank's district older than Mr. Shank

had announced his retirement several months before Mr. Shank's termination. The jury returned a verdict for Mr. Shank and determined that the ADEA violation had been willful. The court later denied Kelly-Springfield's motion for a judgment as a matter of law or, alternatively, a new trial.

II DISCUSSION

On appeal, Kelly-Springfield contends that the district court should have granted its motion for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure. In reviewing the district court's decision, we examine the record as a whole to determine whether there was sufficient evidence from which a reasonable jury could have found age discrimination. Pierce v. Atchison, Topeka & Santa Fe Ry., 65 F.3d 562, 572 (7th Cir.1995); Futrell v. J.I. Case, 38 F.3d 342, 346 (7th Cir.1994); Castleman v. Acme Boot Co., 959 F.2d 1417, 1421 (7th Cir.1992); Hybert v. Hearst Corp., 900 F.2d 1050, 1054 (7th Cir.1990). Here, Mr. Shank had no direct evidence of age discrimination. Rather, on the basis of circumstantial evidence, he asked the jury to draw the inference that Kelly-Springfield fired him because of his age. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Futrell, 38 F.3d at 345-46. In such a case, the " 'factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.' " Id. at 346 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993)); see Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.1994), cert. denied, 515 U.S. 1159, 115 S.Ct. 2612, 132 L.Ed.2d 855 (1995). Mr. Shank has a prima facie case. The question for us, therefore, is whether Mr. Shank placed before the jury sufficient evidence from which it could have reasonably concluded that Kelly-Springfield's proffered reason for termination "was a pretext for a willful decision to discharge [Mr. Shank] on account of his age." Futrell, 38 F.3d at 346; see Perfetti v. First Nat'l Bank, 950 F.2d 449, 452 (7th Cir.1991), cert. denied, 505 U.S. 1205, 112 S.Ct. 2995, 120 L.Ed.2d 871 (1992). We must assess the evidence in its entirety. After completion of trial, the prima facie case requirement falls away and the sole remaining issue is whether age was a determining factor in the termination. Hybert v. Hearst Corp., 900 F.2d 1050, 1054 (7th Cir.1990); see also Gehring, 43 F.3d at...