Richter v. Hook-SupeRx, Inc.

• Decision Date: 27 April 1998
• Docket Number: INC,HOOK-SUPER,No. 97-1909,97-1909
• Citation: 142 F.3d 1024
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 564, 73 Empl. Prac. Dec. P 45,330 James A. RICHTER, Plaintiff-Appellant, v.and Revco D.S., Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1024

142 F.3d 1024

77 Fair Empl.Prac.Cas. (BNA) 564,

73 Empl. Prac. Dec. P 45,330

James A. RICHTER, Plaintiff-Appellant, v. HOOK-SUPERX, INC. and Revco D.S., Inc., Defendants-Appellees.

No. 97-1909.

United States Court of Appeals Seventh Circuit.

Argued Jan. 8, 1998.

Decided April 27, 1998.

Wayne O. Adams, III (argued), Johnson, Smith, pence, Densborn, Wright & Heath, Indianapolis, IN, for Plaintiff-Appellant.

Kim F. Ebert (argued), Locke, Reynolds, Boyd & Weisell, Indianapolis, IN, for Defendants-Appellees.

Before CUMMINGS, COFFEY, and RIPPLE, Circuit Judges.

CUMMINGS, Circuit Judge.

In July 1994, defendant Revco Drug Stores, Inc. ("Revco") acquired defendant Hook-SupeRx, Inc. ("HSI"). Plaintiff James Richter had been employed by HSI and its predecessor Hook Drug Stores ("Hook") for 29 years. Revco decided not to retain Richter as Human Resources Manager after the acquisition. At the time of this decision, Richter was 52 years old and his replacement was 45 years old. Richter brought suit against Revco and HSI ¹ under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., alleging that Revco and HSI unlawfully discriminated against him on account of his age when Revco terminated him and replaced him with a manager seven years younger.

On March 18, 1997, the district court granted summary judgment in favor of Revco and HSI. Finding no issue of material fact, we affirm.

I. Facts

Richter's employment history with Hook began in 1965 when Richter was hired by Hook as a Management Trainee. From 1966 to 1967, he served as an Employment Supervisor; from 1967 to 1969, he worked as Director of Personnel; and from 1969 to 1981, he was an Assistant Vice President. In 1981, Richter became Hook's Vice President of Human Resources. In 1986, HSI was formed upon Revco's acquisition of Hook and assets of SupeRx Drugs Corporation ("SupeRx"). Richter remained Vice President of the Hook Division of Human Resources and was supervised by Robert Griffith, HSI's Vice President of Human Resources. In 1991, HSI decided to eliminate Richter's Vice President position and made him Director of Human Resources for the Hook Division. In July 1992, Richter was reassigned to the position of Manager of Human Resources at the Indianapolis Distribution Center. He held this position until July 15, 1994.

In April 1994, Revco received board approval for its acquisition of HSI, which was to become effective on July 15, 1994. Having decided to retain human resources personnel at the Indianapolis Distribution Center, Revco began exploring which HSI employees to retain. In May 1994, the decision was made not to retain Richter, and Revco began interviewing other HSI employees to fill the Human Resources Manager position. Three Revco employees were primarily involved in the selection of the Human Resources Manager at the Indianapolis facility: David Lynn, Revco's Vice President of Distribution; Augustine Simone, Revco's Director of Human Resources for Distribution; and Douglas Coffey, Revco's Senior Vice President of Human Resources. Lynn basically delegated the decision to Simone and Coffey, who relied on personal contacts with Richter in determining whether to retain him. Revco did not establish written criteria for the position, did not review the personnel files or performance evaluations of candidates, and did not use a formal process in assessing whether to retain Richter.

In April 1994, Coffey met with Griffith ² and other HSI officials to discuss HSI personnel whom Revco might consider for employment after the acquisition. Griffith told Coffey that his personal opinion was that Richter "was not a strong performer." Coffey inferred from the conversation that Richter was not as actively involved in the business as Griffith would have expected him to be. On April 14, 1994, Coffey personally met with Richter at the Indianapolis Distribution Center. After touring the facility together and meeting in Richter's office, Coffey formed the following impressions of Richter: he did not know many people in the facility; he was more of an "administrative" human resources manager than necessary at the facility; he did not appear to be significantly involved in job interviews, employee appraisals, or employee training. In addition, Coffey had expected that Richter, as Human Resources Manager, would have played an active role in union avoidance training and was surprised that HSI used outside consultants to perform that function.

Simone met with Richter on or about April 21, 1994, and again in May 1994. Based upon conversations with Richter discussing the Indianapolis operation, the human resources program in place there, and Richter's work experience, Simone formed the impression that Richter was delegating effectively, but was not using a hands-on approach to human resources activities. Coffey agreed that Richter was not the type of hands-on manager that Revco desired. After being advised of these concerns, Lynn agreed that Revco was looking for a manager more actively involved in human resources activities and that Richter was not the right person for the job. In June 1994, Simone advised Richter that he would not be retained following the acquisition. Richter was 52 years old at the time.

After deciding not to retain Richter, Revco began looking for other candidates among HSI employees who would take a more active role in human resources activities. Revco interviewed Stan McGrew, who was recommended by individuals at HSI, but did not offer him the position, finding him to be sarcastic, lacking a positive attitude, and seemingly more comfortable working with management personnel and unlikely to be well-received by warehouse employees. McGrew, who was 40 years old at the time, was the youngest of the three individuals considered for the Human Resources Manager position.

Revco then contacted John Kellner, who was 45 years old at the time, to interview for the position. Kellner was eventually chosen as the Human Resources Manager.

Due to the acquisition by Revco, 18 of the approximate 21 HSI human resources managers or officers lost their jobs. Of those who were not retained, all but one were younger than Richter, and nine were under the age of 40. Of the three HSI human resources managers (including Kellner) who were retained by Revco, two were over the age of 40 and thus were members of the protected class.

II. Analysis

We review a district court order granting summary judgment de novo. Geier v. Medtronic, Inc., 99 F.3d 238, 240 (7th Cir.1996). We affirm a grant of summary judgment when the record, viewed in a light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202. We apply the summary judgment standard with particular care in employment discrimination cases, which often turn on the issues of intent and credibility. Geier, 99 F.3d at 240.

The ADEA makes it illegal for an employer to discharge, refuse to hire, or otherwise discriminate against an employee over 40 years old because of that individual's age. 29 U.S.C. §§ 623(a), 631(a). To succeed in an ADEA claim, a plaintiff must establish that he would not have received adverse treatment but for his employer's motive to discriminate on the basis of his age. Fuka v. Thomson Consumer Electronics, 82 F.3d 1397, 1402 (7th Cir.1996).

Plaintiff may establish a case of age discrimination in order to avoid summary judgment in one of two ways. First, he may present "enough evidence (whether direct or circumstantial) to raise a genuine issue concerning the employer's motivation in carrying out the challenged employment action." Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 889 (7th Cir.1997). Alternatively, he may avoid summary judgment by using the indirect, burden-shifting approach set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668. Hartley, 124 F.3d at 889.

Because Richter presented no evidence (direct or circumstantial) demonstrating that his termination was a result of intentional age discrimination, we analyze the case under the McDonnell Douglas burden-shifting approach. Under that approach, Richter must establish a prima facie case of age discrimination by demonstrating that (1) he was a member of the protected class (age 40 or over); (2) he was performing his job to his employer's legitimate expectations; (3) despite his performance, he was discharged, not hired or promoted, etc.; and (4) younger, similarly situated employees were treated more favorably. Fuka, 82 F.3d at 1404. If Richter should succeed in establishing a prima facie case, "a rebuttable presumption of discrimination arises," and the burden shifts to Revco to present a legitimate, nondiscriminatory reason for his termination. Id. Once Revco offers such a reason, the presumption of discrimination dissolves, and the burden shifts back to Richter to establish that the proffered reason is a pretext for discrimination. Id.

We agree with the district court that Richter established the above three elements of a prima facie case of age discrimination: he was 52, was performing his job sufficiently, and was discharged from employment. Although the district court found that Richter satisfied the fourth element, the court did not have the benefit of this Court's decision in Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, decided on September 5, 1997, in reaching its determination. Based on Hartley, we conclude that Richter failed to satisfy the fourth prong of the McDonnell Douglas approach and thus cannot...