94 F.3d 644 (6th Cir. 1996), 94-6664, Gerth v. Sears, Roebuck & Co.

Docket Nº:94-6664.
Citation:94 F.3d 644
Party Name:Arthur E. GERTH, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee.
Case Date:August 14, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 644

94 F.3d 644 (6th Cir. 1996)

Arthur E. GERTH, Plaintiff-Appellant,


SEARS, ROEBUCK & CO., Defendant-Appellee.

No. 94-6664.

United States Court of Appeals, Sixth Circuit

August 14, 1996

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court for the Eastern District of Kentucky, No. 93-00345; Henry R. Wilhoit, Jr., District Judge.



Before: SUHRHEINRICH and SILER, Circuit Judges; EDMUNDS, District Judge. [*]

SILER, Circuit Judge.

Plaintiff, Arthur E. Gerth, appeals the district court's grant of summary judgment to Defendant, Sears, Roebuck & Company ("Sears"). Gerth filed an age discrimination lawsuit against Sears. Gerth charges that the district court's twin legal findings, that he had not established a prima facie case of age discrimination and that he had not established pretext after Sears articulated a legitimate reason for the discharge, were in error. For reasons stated hereafter, this court AFFIRMS the district court.


Gerth began his work association with Sears in 1960. He worked his way up in the company and attained the status of auto center manager at a Lexington, Kentucky Sears store between 1971 to 1990. Gerth transferred to the appliance department in 1990. 1 While Gerth's gross sales in this department were excellent, Sears complained that Gerth was not selling enough maintenance agreements. 2 Gerth repeatedly failed to meet the maintenance agreement percentage goals established for him. Consequently, Sears offered Gerth a position in a less profitable department. Gerth refused, and he ended his employment with Sears in April 1993.

Gerth filed a Kentucky age discrimination claim, KY.REV.STAT.ANN. § 344.040, in Fayette Circuit Court on July 27, 1993. Sears removed the action to federal district court based on diversity of citizenship and moved for summary judgment on August 24, 1994. The district court sustained this motion, finding that Gerth had not established a prima facie case of age discrimination because he did not meet his proof of qualification. Alternatively, the court found that even had a prima facie case been established, Sears had articulated a legitimate reason for the discharge and Gerth, in response, had not proven pretext for the discharge.


A motion for summary judgment should be granted when "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). On a summary judgment motion, the record and all inferences that can be drawn from it must be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).


In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), the Supreme Court constructed a three-part framework for handling employment discrimination cases: first, the plaintiff must establish a prima facie case of discrimination; once established, the defendant must articulate a legitimate, nondiscriminatory business reason for its actions; once articulated, the plaintiff must show that the business reason served as a pretext to mask an illegal discriminatory motive. See McDonald v. Union Camp Corp., 898 F.2d 1155, 1159-60 (6th Cir.1990) (noting that the McDonnell Douglas test has been "routinely employed in this circuit"); Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226, 229 (Ky.1984) (noting that the Kentucky age discrimination statute is modeled after its federal equivalent and that Kentucky courts will consider federal interpretation).

  1. The Prima Facie Case--Traditional Analysis

    Gerth carries the initial burden of proving "beyond a preponderance of the evidence" that he can meet the four elements of a prima facie case of age discrimination: (1) that he belongs to a statutorily protected age group, (2) that he was qualified or performed his job satisfactorily, (3) that he was nonetheless terminated, and (4) that he was replaced by a younger person. Harker, 679 S.W.2d at 230; see also McDonald, 898 F.2d at 1159-60 (applying similar standard). There is no dispute that Gerth, being over forty years old, is a member of the protected class. It is also certain that Gerth's 1993 resignation was an adverse employment action. 3 Sears replaced Gerth with a younger person, thereby meeting the fourth requirement. At issue in the case at bar is the second prong: whether Gerth performed his job in a satisfactory manner.

    "In order to show that he was qualified, [the plaintiff] must prove that he was performing his job 'at a level which met his employer's legitimate expectations.' " McDonald, 898 F.2d at 1160 (quoting Huhn v. Koehring, 718 F.2d 239, 243 (7th Cir.1983)). In other words, if Gerth "was not doing what [Sears] wanted him to do, he was not doing his job." Id. (quotation omitted). In this case, Sears established a maintenance agreement percentage that Gerth was required to maintain. Gerth's failure to meet this percentage was the subject of several meetings and deficiency reviews. Gerth concedes that he was not performing to the satisfaction of the Sears' management. "Consequently, [he] has failed to prove a prima facie case of age discrimination, and therefore, summary judgment under the McDonnell Douglas approach is appropriate." McDonald, 898 F.2d at 1160.

    Gerth advances several arguments to overcome the qualification threshold. First, he claims that his gross merchandise sales and gross maintenance agreement sales belie any claim that he was not qualified for the position of appliance salesman. In other words, Gerth claims that Sears made "too big a deal" of his failure to attain the maintenance agreement percentage and should have looked at his gross sales instead. "However, the aim [of an age discrimination analysis] is not to review bad business decisions, or question the soundness of an employer's judgment." McDonald, 898 F.2d at 1160 (citing Wilkins v. Eaton Corp., 790 F.2d 515, 521 (6th Cir.1986)); see Harkins, 679 S.W.2d at 231 ("The age discrimination law was not intended as a vehicle for judicial review of business decisions regarding terminations."); see also Baker v. Sears Roebuck & Co., 903 F.2d 1515, 1520 (11th Cir.1990) (rejecting argument that gross sales should excuse a poor maintenance agreement percentage). Merely because Gerth successfully executed portions of his job responsibilities for long periods of time does not excuse his failure to meet the required percentage of maintenance agreement sales.

    Next, Gerth claims that his failure to meet his maintenance agreement percentage, by Sears' own standards, should not have disqualified him outright from his position. He claims that it was not Sears' policy to judge salesmen on maintenance agreement percentage alone. As evidence, Gerth cites a Sears document that suggests that "any [salesman] who affirmatively offers the Maintenance Agreement to our Customers ... cannot be disciplined or terminated on the basis of poor Maintenance Agreement Sales." The document later confirmed that maintenance agreement sales is but one "measure of performance" for a salesman. This document would tend to show that the mere failure to meet the established percentage, in and of itself, should not have endangered Gerth's qualifications for the job.

    Sears responds that the document in question is dated June 1994, over a year after Gerth left Sears. The document itself describes that the procedure is a "new" policy on poor maintenance agreement sales performance. Gerth's brief to the district court recognized this policy as "new," inferring that the policy was not in existence while he worked at Sears. Gerth was aware that his maintenance agreement percentage was an important performance measurement to Sears' management. Without more, the...

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