3 F.3d 1035 (7th Cir. 1993), 92-3260, Sarsha v. Sears, Roebuck & Co.

Docket Nº:92-3260.
Citation:3 F.3d 1035
Party Name:Kenneth SARSHA, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.
Case Date:August 20, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1035

3 F.3d 1035 (7th Cir. 1993)

Kenneth SARSHA, Plaintiff-Appellant,

v.

SEARS, ROEBUCK & COMPANY, Defendant-Appellee.

No. 92-3260.

United States Court of Appeals, Seventh Circuit

August 20, 1993

Argued March 29, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 18, 1993.

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John A. Dienner, II (argued), Matthias A. Lydon, Lydon & Griffin, Chicago, IL, Lawrence Petroshius, Petroshius & Petroshius, Waukegan, IL, for plaintiff-appellant Kenneth Sarsha.

Jeffrey S. Goldman, Allison Blakley (argued), Paul A. Olsen, Fox & Grove, Chicago, IL, for defendant-appellee Sears, Roebuck & Co.

Before FLAUM and KANNE, Circuit Judges, and REAVLEY, Senior Circuit Judge. [*]

KANNE, Circuit Judge.

Kenneth Sarsha sued Sears, Roebuck & Company, alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621 et seq., and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The district court granted the defendant's motion for summary judgment on both claims. We affirm in part and reverse in part.

I.

In December 1987, Gary Taylor, manager of the Sears retail store in Springfield, Illinois, determined that Sarsha, the store's operating manager and second-in-command, was dating a subordinate by the name of Rebecca Schaertl. The next month, after consulting the company's regional office in St. Louis, Taylor fired Sarsha for alleged "willful misconduct," specifically, dating Schaertl after being warned by his supervisors not to date co-workers. Sarsha sued, charging age and gender discrimination. He claimed that Sears had no policy or long standing practice preventing managers from

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dating subordinates, and protested that he was never warned, on threat of his job, to refrain from dating a co-worker. According to Sarsha, he was discharged because of his age (46) and because he was a male; Sears did not discharge his inamorata.

The district court disagreed, and concluded that Sarsha had failed to state a viable claim under either the ADEA or Title VII. Sarsha v. Sears, Roebuck & Co., 796 F.Supp. 1132 (N.D.Ill.1992). With respect to the age discrimination claim, the court held that Sears had articulated a non-discriminatory reason for discharging Sarsha, and that Sarsha had failed either to demonstrate that the asserted reason was pretextual or to produce direct evidence of discriminatory intent. On the gender discrimination claim, the court held that Sarsha had failed to establish a prima facie case because he failed to show that, under the circumstances, his employer had treated him differently from a similarly situated female. Sarsha appealed; we have jurisdiction pursuant to Title 28 U.S.C. Sec. 1291.

II.

We review de novo a district court's grant of summary judgment, viewing the record and all reasonable inferences drawn from it in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir.1992); Anderson v. Stauffer Chemical Co., 965 F.2d 397, 400 (7th Cir.1992). Summary judgment is appropriate only when the materials before the court demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Richardson v. Penfold, 839 F.2d 392, 394 (7th Cir.1988). This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir.1992); McMillian v. Svetanoff, 878 F.2d 186, 188 (7th Cir.1989). Accordingly, we will affirm the decision of the district court only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict. Billish v. City of Chicago, 989 F.2d 890, 892 (7th Cir.1993), petition for cert. filed, June 28, 1993. See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Karazanos v. Navistar International Transportation Corp., 948 F.2d 332, 335 (7th Cir.1991).

To prevail on an ADEA claim, Sarsha must ultimately prove that he was discharged because of his age. Anderson, 965 F.2d at 400. He does not need to prove that Sears was motivated by age alone; "it is enough that age was a 'determining factor' or a 'but for' element in the employer's decision." Id. See also Fisher, 979 F.2d at 1243; La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984). To prove his claim, Sarsha may follow either of two evidentiary paths. First, he may try to meet his burden head on by presenting direct or circumstantial evidence that age was a dispositive factor in his discharge. King v. General Electric Co., 960 F.2d 617, 621 (7th Cir.1992). The district court held that Sarsha had failed to show direct evidence of age discrimination. 1 We agree. The evidence Sarsha puts forth to show Sears's discriminatory animus is exiguous, and he has made no attempt to show a nexus between this evidence and Sears's decision to fire him. See Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1266 (7th Cir.1993) (alleged discriminatory remarks, when unrelated to the employment decision in question, are not evidence that employer relied on illegitimate criteria); Smith v. Firestone Tire and Rubber Co., 875 F.2d 1325, 1330 (7th Cir.1989) (same).

Sarsha can also attempt to prove his case using the indirect, burden shifting method of proof outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also

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Weihaupt v. American Medical Association, 874 F.2d 419, 424 (7th Cir.1989); Oxman v. WLS-TV, 846 F.2d 448, 452-53 (7th Cir.1988). This method places the initial burden on the plaintiff to prove a prima facie case of age discrimination. Thus, Sarsha must demonstrate that (1) he was a member of the protected class (persons over 40), (2) he was performing his job well enough to meet his employer's legitimate expectations, (3) he was discharged, and (4) the employer sought a...

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