Shager v. Upjohn Co.

• Decision Date: 17 September 1990
• Docket Number: No. 89-3642,89-3642
• Citation: 913 F.2d 398
• Parties: 53 Fair Empl.Prac.Cas. 1522, 54 Empl. Prac. Dec. P 40,229 Ralph C. SHAGER, Plaintiff-Appellant, v. UPJOHN COMPANY and Asgrow Seed Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 398

913 F.2d 398

53 Fair Empl.Prac.Cas. 1522,

54 Empl. Prac. Dec. P 40,229

Ralph C. SHAGER, Plaintiff-Appellant, v. UPJOHN COMPANY and Asgrow Seed Company, Defendants-Appellees.

No. 89-3642.

United States Court of Appeals, Seventh Circuit.

Argued June 5, 1990.

Decided Sept. 17, 1990.

Michael R. Fox, Mary E. Kennelly, Fox, Fox, Schaefer & Gingras, Madison, Wis., for plaintiff-appellant.

Terry L. Moore, Terrence R. Spaeth, Herrick, Hart, Duchemin & Danielson, Eau Claire, Wis., for defendants-appellees.

Before WOOD, Jr., CUDAHY, and POSNER, Circuit Judges.

POSNER, Circuit Judge.

Ralph Shager appeals from the dismissal of his suit under the Age Discrimination in Employment Act (29 U.S.C. Secs. 621 et seq.), following a motion for summary judgment made by his former employer, the Asgrow Seed Company, and its successor and codefendant, Upjohn Company. The grant of summary judgment was proper only if, on the facts before the district judge, taken as favorably to Shager as the evidence permitted, no reasonable jury could conclude that Asgrow had fired him because of his age.

Shager was employed by a manufacturer of seeds that was bought by Asgrow in 1983, when he was fifty years old. His job was sales representative for the State of Wisconsin, and required him to supervise the company's sales force in the state--a force of farmers working parttime as seed salesmen. Asgrow kept Shager, at first with the same responsibilities. He reported to John Lehnst, Asgrow's youngest district manager (thirty-five years old in 1983), who was in charge of the company's sales representatives in several midwestern states. There were nine such representatives, six older than Lehnst, of whom five were in their fifties.

Shortly after the acquisition, Asgrow hired a second sales representative for Wisconsin, Eugene Stouffer. Stouffer was forty-eight years old, and Lehnst, troubled by the disparity in ages between himself and most of his subordinates, asked Stouffer several times during the pre-hire interview whether he would mind being supervised by a younger man; he said he would not. After Stouffer came on the scene, Lehnst divided the Wisconsin territory into a northern and a southern part--rejecting Shager's suggestion that it be divided along east/west lines instead. The northern part was more challenging; it was larger and its farmland was of poorer quality, depressing the demand for seeds. Lehnst assigned the northern part to Shager and the southern to Stouffer.

In 1985 Lehnst approached, actively recruited, and hired Lane Schradle to be a third Wisconsin sales representative. Schradle was twenty-nine years old and had no previous experience in the seed business. Wisconsin was not generating enough business to justify a third sales representative, and Lehnst anticipated having eventually to eliminate one. But for now he merely redivided the territories. Shager retained the infertile northern part--shorn moreover of some of its best areas. Stouffer was given the southeastern part of the state, and Schradle the southwestern part plus several counties in northern Illinois. Schradle's was the richest of the territories from the standpoint of marketing seeds; Shager's remained the poorest. After Shager was fired, the state was divided between the two remaining sales representatives along east-west rather than north-south lines--as he had suggested.

Although the 1985 division made it difficult for Shager to reach the sales goals set for him by Lehnst, he not only reached but surpassed them, while Schradle failed to meet the modest goals (modest considering the richness of his territory) that Lehnst had set for him. In fact, Schradle's total sales were far below Shager's, despite the difference in sales potential between the two territories. Shager appears to have bested Stouffer as well. Nevertheless, in the next semi-annual written evaluation of the sales representatives' performance, in April 1986, Lehnst rated the sales performance of both Shager and Schradle marginal, but then went on and made excuses for Schradle's poor performance, such as a poor harvest the previous season and Schradle's lack of experience in the seed business. Meanwhile, Lehnst had placed Shager on probation for alleged deficiencies in collecting accounts receivable from customers in his territory, and in the management of salesmen. When the deficiencies persisted, Lehnst recommended to Asgrow's "Career Path Committee," which reviews personnel actions, that Shager be fired; and in July 1986, he was.

There is evidence that Shager's deficiencies were exaggerated and in any event that they pale beside his outstanding sales performance, inexplicably rated marginal by his hostile supervisor. There is also some although not much evidence of Lehnst's animosity toward older workers. He was heard to say to one of Shager's younger salesmen, "These older people don't much like or much care for us baby boomers, but there isn't much they can do about it." He also was heard to make frequent comments to the effect that "the old guys know how to get around things." And in Schradle's first performance evaluation, Lehnst wrote: "It is refreshing to work with a young man with such a wonderful outlook on life and on his job," though in fact Schradle's performance had not been distinguished.

The district judge acknowledged that, for the purpose of his deciding whether Shager had made out a prima facie case of discrimination by the method authorized for race cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and extended to age cases in Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1219 (7th Cir.1980) (per curiam), Asgrow's retaining young Schradle while discharging old Shager was the equivalent of replacing an old by a young worker. Oxman v. WLS-TV, 846 F.2d 448, 453-56 (7th Cir.1988); Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 95-97 (7th Cir.1985). The contrary position not only would license age discrimination in virtually all cases in which an employer was reducing the overall size of his work force, but also would encourage employers to fire unwanted workers in two stages--first hiring the replacement worker and then, after a decent interval had elapsed, firing the unwanted one.

But the fact that an older worker is treated worse than a younger one--here, that Shager was (in effect) replaced by a younger man--is not enough to establish a prima facie case of age discrimination. Shager was required to show that his performance in the job was adequate. Dale v. Chicago Tribune Co., 797 F.2d 458, 462-63 (7th Cir.1986). This requirement may seem to--in fact does, rather--confuse the question of which party bears what burden of producing evidence either to stave off trial (the defendant's goal) or to stave off the dismissal of the case on the defendant's motion for summary judgment (the plaintiff's goal). Under the approach of McDonnell Douglas, applied to age discrimination cases, once the employee shows that he was replaced by a younger person even though he was performing up to his employer's expectations, the burden shifts to the employer to present evidence that the employee was replaced for a reason unrelated to his age or that of his replacement. Such a possibility might however seem excluded by one of the determinations necessary to place this burden of production on the employer--namely that the replaced employee had been performing up to the employer's expectations. Not quite. The replaced employee might be adequate but the replacement superior; or the employer might be forced by rising costs or declining demand for his product to reduce the size of his work force even though all his workers were doing their jobs adequately. So the inquiries can coexist, though there is much overlap between them.

Asgrow presented evidence that Shager's deficiencies in account management and personnel supervision dragged him below the level of expected performance. This submission, whether addressed to Shager's initial burden of production--his burden of producing evidence not only that he was replaced by a younger person but also that he was performing up to his employer's expectations--or designed to place on Shager the burden of producing evidence of pretext, required him to submit evidence that he had not been fired because his performance was inadequate. He could satisfy this burden with evidence either that he was a satisfactory employee or that Asgrow's real concern was, in any event, his age--for of course direct proof of age discrimination is a permissible alternative (or, as here, supplement) to dancing through the McDonnell Douglas quadrille. Oxman v. WLS-TV, supra, 846 F.2d at 452.

The district judge concluded that Shager had failed to present evidence either that he was fulfilling his employer's expectations or that the motive for firing him was his age; in this connection the judge remarked that Lehnst's comments about age were too isolated and ambiguous to demonstrate hostility to older workers. Yet Shager had presented evidence that his alleged performance deficiencies were a pretext for firing him--evidence not only that those deficiencies were greatly exaggerated but also that they were offset by his skill and energy in generating a good sales performance in an unpromising territory. The picture that emerges is of a worker who like the rest of us had the weaknesses of his strength. In his zeal to sell he failed to attend as assiduously as he might have done to the drabber managerial aspects of his job, but his overall performance was outstanding, or at least as good as that of his peers, and better than that of the young man who was retained when he was fired. True, all this is so only when the evidence is viewed as favorably to Shager as reason will permit, but that is the proper viewpoint when the question is whether summary judgment should have been granted to his adversary.

Of course it is...