Kephart v. Institute of Gas Technology

• Decision Date: 15 September 1980
• Docket Number: No. 79-2536,79-2536
• Parties: 23 Fair Empl.Prac.Cas. 1412, 24 Empl. Prac. Dec. P 31,236 Wilbur L. KEPHART, Plaintiff-Appellant, v. INSTITUTE OF GAS TECHNOLOGY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1217

630 F.2d 1217

23 Fair Empl.Prac.Cas. 1412,

24 Empl. Prac. Dec. P 31,236

Wilbur L. KEPHART, Plaintiff-Appellant, v. INSTITUTE OF GAS TECHNOLOGY, Defendant-Appellee.

No. 79-2536.

United States Court of Appeals Seventh Circuit.

Argued May 6, 1980.

Decided Sept. 15, 1980.

Stephen G. Seliger, Chicago, Ill., for plaintiff-appellant.

James W. Gladden, Jr., Mayer, Brown & Platt, Chicago, Ill., for defendant-appellee.

Before PELL, Circuit Judge, NICHOLS, Associate Judge, ^* and CUDAHY, Circuit Judge.

PER CURIAM:

Plaintiff Kephart is an individual. This is not a class action. He is apparently an economist by training and profession. Defendant, hereinafter IGT, despite its name, is a profit-making business organization, which performs (we suppose normally in a consultant relationship), energy-related research for the government and private industry. Defendant employed plaintiff in June 1972 at his then age of forty-four as its Director of the Management Sciences Division. It discharged him in November 1974 at the age of forty-seven. He sued in district court alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 and ff. The district judge dismissed on motion because he had not given a 180 day notice, but this court held the requirement was not jurisdictional and reversed. 581 F.2d 1287 (1978). The opinion states that the Act should be liberally interpreted to effectuate its purpose to end age discrimination in employment, but its contents do not otherwise affect the present controversy. The district court allowed extensive discovery, upon the completion of which defendant moved for summary judgment again, and the district judge granted the motion and dismissed the complaint. Our problem is to determine whether such a dismissal on summary judgment was proper. Certain state law claims asserted under pendent jurisdiction were also dismissed, but these are not before us and we do not consider them. We determine that the summary judgment was properly granted and we therefore affirm.

We read the district judge's Memorandum Opinion and Order, which is attached to and made a part of this opinion, as holding that the plaintiff's special factual allegations and proffers of proof, as distinguished from his conclusory allegations, do not present a triable issue of fact. The district judge necessarily, in view of his decision, rejected plaintiff's conclusion that IGT had a policy of discriminating against the aged, but he accepted at least arguendo all the subsidiary facts plaintiff put forward as evidence to support his assertion. Summary judgment is improper in a discrimination case-or any other-if it involves-as it often must-any weighing of conflicting indications of motive and intent. Here plaintiff had no indications of motive and intent, supportive of his position, to put on the scales for weighing. It was a wholly empty case. In such circumstances, summary judgment is proper.

We regret, however, that the parties did not put before this court, nor does the district judge, more specific information as to the nature of defendant's business, the nature of plaintiff's duties in that business, and the nature of the qualifications his job or jobs required. (He was shifted from one slot to another during his employment.)

We gather by inference from the findings and facts of record that the business of defendant was consultancy and research in support of energy-related government and private business. We gather it was small and informally run. It had no direct labor force, nor did it produce, sell, or deliver materials. One might almost call it a "think-tank." Plaintiff for his first two years was Assistant Director of Management Sciences, a high level position that involved hiring and firing, supervision of the work of others, contacts with clients, and to some degree at least, getting and keeping business. The name of the division suggests that its work was efficiency or management engineering. In employing an outside "think-tank," companies and federal agencies often are influenced by what they know about the employee who will work to solve their problems. In August 1974, the Management Sciences Division was merged into the Engineering Research Division, under one Robert Rosenberg. Kephart was demoted in rank (but apparently not in pay) to senior economist, and relieved of all management responsibilities. From then on he got no new work, several projects he was already working on were killed, and he was advised to look for other work. He was allowed a decent interval, after which he was discharged. Top officials in IGT had long been dissatisfied with Mr. Kephart, as was Columbia Gas Systems, a major integrated natural gas producer, for whom IGT, through Mr. Kephart, was doing an important study.

No reference is made to any written job descriptions and we gather there were none. There was no written evaluation of an employee's performance except one of the most summary description when he was considered for a salary raise. Mr. Kephart got one wherein the evaluation said his work was "good" but the evaluator made clear in deposition testimony that he meant only satisfactory. Other top level employees got better raises at that time. It is clear that management expected to and did move persons in and out within the organization and on and off the payroll with perfect freedom according to how useful it appeared they were to the company in light of its then mix of business and how successful they were in pleasing the clients.

The district judge cited and relied on the classic formula in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) which prescribes a prima facie case for the aggrieved employee to make in a discrimination case. It involves four elements, one of which is that he was qualified for the job he sought. In case of a discharge, the employer's experience with him is the best test of that. If the prima facie case is made, the burden shifts to the employer to "articulate" a valid reason other than the protected characteristic for not hiring (or for firing). Of course, unsatisfactory performance is the best of reasons, and the district judge construed this to mean unsatisfactory as evaluated by the employer, a decision, if not a mere pretext, not to be second guessed by the court. The district judge well analyzes the case and we need not duplicate his effort as we incorporate his opinion in ours. He seems to hold that plaintiff did not make a prima facie case, but even if he did, dissatisfaction with his work and valid reasons for it were "articulated." We agree.

As regards the element of qualification in the prima facie case, we say a word more. In the case of a company like IGT, with the personnel practices that appear in this record, how do you decide who is qualified? Presumably Mr. Kephart's degrees in economics do not ipso facto qualify him, nor does the fact that IGT once hired him. Qualification obviously depends on the nature of IGT's business at any given time. One year an outgoing business-getter type might be best qualified, while in the next, after the business was got, it might be a cloistered scientist or mathematician. To ignore the shifting nature of qualification from time to time would make the qualification requirement meaningless and would encourage the harassment of small businesses having informal personnel practices, with unfounded suits. It is an obvious purpose of the Supreme Court in McDonnell, supra, and still more in Board of Trustees We note that plaintiff could and did depose defendant's top officials. Where extended depositions are taken, much of the strain in the resources of a party, that a full dress trial would require, has already been imposed. The purpose of summary judgment is to that extent frustrated. It may be that in the development of a case such as this it will be necessary to depose company officials in the search of a prima facie case before summary judgment, whenever the employer is a small private outfit that does not maintain a separate personnel department nor the elaborate rules, rituals, forms, regulations, procedures, reports, documents, and records, that characterize the personnel management of large companies and the government. The presence of these things will at least narrow the scope of inquiry by oral testimony and the ratio of company officials to be interrogated, compared to the whole number. This is one of the many drawbacks a company will have to incur under our present day laws because of being small, but no doubt it enjoys some advantages too. At any rate, the district judge has the right and duty to police the use of depositions for mere fishing expeditions and to favor the development of relevant facts by less costly means. We note plaintiff complains that the depositions were useless to him without the right of cross-examination at trial being accorded besides. Apparently he followed the common practice of just getting the deponent's stories and not trying to shake them. We do not find this a sufficient reason for not deciding the case on summary judgment.

of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) to make the allocation of burden of proof responsive to the need to stop unsupported and malicious suits short of the necessity for a full dress trial. The district judge's use of summary judgment and his application of these burden of proof rules are sensitive and accord with law. He had, however, support in the record for squarely holding that the prima facie case was not made because plaintiff was not, on the date of his dismissal, "qualified" in the sense the formula requires, i. e., his work was not satisfactory to his employers for reasons articulated by them, related to his capabilities, and unrelated to his age.

The district judge's opinion and order are attached hereto and incorporated by reference in this opinion.

AFFIRME...