DeLuca v. Winer Industries, Inc.

• Decision Date: 24 April 1995
• Docket Number: No. 94-2905,94-2905
• Parties: 4 A.D. Cases 757, 9 A.D.D. 427 Raymond DeLUCA, Plaintiff-Appellant, v. WINER INDUSTRIES, INC., a Delaware Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 793

53 F.3d 793

4 A.D. Cases 757, 9 A.D.D. 427

Raymond DeLUCA, Plaintiff-Appellant, v. WINER INDUSTRIES, INC., a Delaware Corporation, Defendant-Appellee.

No. 94-2905.

United States Court of Appeals Seventh Circuit.

Argued Jan. 11, 1995.

Decided April 24, 1995.

Erik D. Gruber, William J. Harte (argued), Harte & Associates, Chicago, IL, for Raymond DeLuca.

Edward W. Feldman (argued), Robert Dickey Hamilton, Miller, Shakman, Hamilton, Kurtzon & Schlifke, Chicago, IL, for Winer Industries, Inc.

Before CUMMINGS and FLAUM, Circuit Judges, and PAINE, District Judge. ^*

FLAUM, Circuit Judge.

Raymond DeLuca filed suit against Winer Industries, alleging that the company terminated him because of his disability, multiple sclerosis, in violation of the American with Disabilities Act ("ADA"), 42 U.S.C. Sec. 12101 et seq. The district court granted summary judgment for the defendant, holding that DeLuca had failed to establish a prima facie case and that the company's reasons for terminating him were pretexts for discrimination. We affirm.

I.

Raymond DeLuca began representing Winer Industries, Inc., a clothing manufacturer, as an independent salesman in 1990. Pursuant to this arrangement, DeLuca sold children's clothing from Winer Industries' "Gee Whiz" line to the Sears catalog. DeLuca received a 5% commission on his sales and paid for his own business expenses. In 1990, DeLuca sold approximately $444,000, in 1991, approximately $2,043,000, and in 1992, approximately $2,130,000 worth of Winer Industries' children's clothing to the catalog.

In early 1992, DeLuca heard rumors that Sears intended to discontinue its catalog operations. He met with Robert Winer, President and CEO of Winer Industries, Michael Glass, Senior Vice-President of Sales, and Joseph Silvestri, Vice-President of Sales and DeLuca's supervisor, to discuss an alternative arrangement in light of the reports. The men expressed a strong desire to retain DeLuca in the event of the discontinuation of the catalog because of his sales performance over the last several years. As a result, Winer Industries hired DeLuca as a full-time salesperson. It agreed to pay him $80,000 per year plus a 1% or 1/2% commission, based on the product sold, business expenses, and fringe benefits including health and life insurance. DeLuca accepted new clothing lines and accounts and agreed to stop representing other clothing manufacturers. ¹ Winer Industries began paying DeLuca his salary on October 1, 1992, and agreed to start commission payments on January 1, 1993.

In November, 1992, DeLuca began experiencing numbness in his face, which he discussed with Silvestri and David Sepler, the "Gee-Whiz" designer. Silvestri later inquired about DeLuca's condition and indicated that he had informed Glass and Winer about it. In December, 1992, DeLuca was diagnosed with multiple sclerosis and his supervisors became aware of the diagnosis. During several different conversations in December, Silvestri told DeLuca he had "to fight it," referred him to another person suffering from the disease, and expressed concern over how his symptoms would affect DeLuca as a salesman. During a business trip to the Chicago office, Glass also asked DeLuca about his condition and medical treatment.

DeLuca was hospitalized for eight days in early January, 1993. Until then he had missed work only for a few medical appointments. The treatment he received successfully relieved DeLuca's symptoms and thereafter he experienced no physical effects of his disease. While hospitalized, DeLuca received a phone call from Silvestri, who stated that Glass and Winer "want to make sure you know you're not covered under hospitalization on this," because the company's insurance plan would not cover DeLuca until May 1, 1993. ²

As a salesman for Winer Industries DeLuca often had trouble securing samples of merchandise to show to potential customers. The company asserted that such problems were industry- and company-wide and persist even today. DeLuca alleged that his difficulties worsened after his diagnosis and that he received no samples after that date, which constituted the critical sales period for Fall 1993 clothing. DeLuca maintained that Glass refused to give DeLuca samples that he had bought on a European trip and held at the company's headquarters in New Jersey. DeLuca also asserted that Glass would no longer prod Sepler to provide DeLuca with necessary samples.

Sears officially announced the closing of its catalog operations in January, 1993. On February 19, 1993, Winer Industries terminated DeLuca's employment, citing his failure to close any sales since becoming a full-time salesman on October 1, 1992. Silvestri and Glass, who made the decision to terminate DeLuca, said they believed that he was more comfortable with the Sears catalog and thus had not vigorously pursued other potential clients. As a result, and in light of the discontinuation of the catalog, Silvestri and Glass concluded that DeLuca likely would not produce any sales in the near future. In addition, due to diminished sales and an operating loss in 1992, Winer Industries sought to reduce expenses. Between 1990 and 1993, the company fired eleven salespeople for poor sales performance. By the end of March, 1994, the company had discontinued all of its children's clothing manufacturing and had fired several salespeople connected to that business, dismissing one person three days before it terminated DeLuca. Since firing DeLuca, Winer Industries has not hired anyone to replace him but Silvestri has taken over his remaining accounts.

DeLuca brought suit under the ADA alleging that Winer Industries and Winer, Silvestri, and Glass (the "individual defendants"), as implementors of the company's policies, had created a hostile work environment, made it impossible for him to produce any sales, and eventually terminated him because of his disability. DeLuca also brought claims alleging the intentional infliction of emotional distress and breach of his employment contract, both of which the district court dismissed; DeLuca has not challenged these rulings on appeal.

The district court held that the individual defendants were not personally liable under the ADA and dismissed the claim against them, another decision DeLuca has not appealed. The court then ruled in favor of Winer Industries on its motion for summary judgment. It first held that DeLuca had not introduced sufficient direct evidence that the company had fired him because of his multiple sclerosis. Next, the court held that DeLuca had not made out a prima facie case under the McDonnell-Douglas burden-shifting method of indirect proof. Specifically, the court held that a genuine issue of material fact existed as to whether DeLuca met the company's legitimate job expectations because it could not determine what those expectations may have been given the obstacles DeLuca had faced. However, because Winer Industries had fired many other employees both before and after terminating DeLuca, and DeLuca had introduced no evidence to the contrary save his own affidavit, which was not based on personal knowledge, the court held that there was no genuine issue of material fact whether the company had treated him less favorably than non-disabled employees. Finally, the court held that even if DeLuca had established a prima facie case, Winer Industries had proffered legitimate non-discriminatory reasons for his termination, including its reduction in force and DeLuca's recent poor sales performance, which DeLuca had failed to show were merely pretextual. This appeal followed.

II.

We review the district court's grant of summary judgment for Winer Industries de novo, Cliff v. Bd. of School Com'rs of Indianapolis, 42 F.3d 403, 409 (7th Cir.1994), and review the record, and all reasonable inferences which can be drawn from it, in the light most favorable to DeLuca, the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). Once the moving party has demonstrated that no genuine issue of material fact exists the non-moving party must show, by specific factual allegations, the existence of such an issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. 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.

Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1162 (7th Cir.1994) (quoting Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993)) (citations omitted).

The ADA provides:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. Sec. 12112. A plaintiff can prove discrimination by either direct or circumstantial evidence that he was fired because of his disability. See Sarsha, 3 F.3d at 1038 (claim under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621 et seq.). The district court held that DeLuca had not presented sufficient direct evidence of intentional discrimination to raise a genuine issue of material fact. In his opening brief DeLuca did not argue that the district court erred in...