Perfetti v. First Nat. Bank of Chicago

Decision Date08 January 1992
Docket NumberNo. 90-3861,90-3861
Citation950 F.2d 449
Parties57 Fair Empl.Prac.Cas. (BNA) 720, 57 Empl. Prac. Dec. P 41,112, 60 USLW 2394 Peter D. PERFETTI, Plaintiff-Appellee, v. The FIRST NATIONAL BANK OF CHICAGO, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Matthew F. Zubek (argued), Robert M. Mavrin, Oak Lawn, Ill., for plaintiff-appellee.

Hubert O. Thompson (argued), Carney & Brothers, Lynn A. Goldstein, Cynthia H. Hyndman, First Nat. Bank of Chicago, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, WOOD, Jr., Circuit Judge, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

When Peter Perfetti was 54 years old, he lost his job at The First National Bank of Chicago (the "Bank"). Perfetti's unit had been disbanded as part of a reduction in force. For five months thereafter, the Bank kept Perfetti on the payroll while he searched for a new job. During this period, Perfetti applied for more than 550 jobs without success. At the same time, he was allowed to bid for positions within the Bank. Perfetti never did find another job at the Bank, although he applied for at least five separate positions. Based on these adverse employment decisions, he sued under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The district court granted summary judgment for the Bank on three of the five positions. R. 89. Perfetti went to trial on the remaining counts, which concerned a position as "facilities coordinator" and a position as "operations analyst." The only issue was whether Perfetti proved that the Bank's proffered justifications for not rehiring him were "unworthy of credence" and therefore pretextual. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). The jury found for Perfetti on both counts. On appeal, the Bank argues that there was insufficient evidence to support the jury's finding that the Bank's proffered reasons were unworthy of credence. 1 We agree. Because the evidence of pretext regarding both employment decisions is insubstantial, we reverse and remand for entry of judgment for the Bank.

Discussion
1. The Question on Appeal

Because Perfetti's claim has already gone to the jury, we need not concern ourselves with the intricacies of his method of proof at trial; the only question on appeal is "whether there was sufficient evidence for a reasonable jury to find that age was a determining factor" in the hiring decisions. Brown v. M & M/Mars, 883 F.2d 505, 507 (7th Cir.1989). In making this determination, we must resolve any evidentiary conflict and every permissible inference in favor of the party who won the verdict. La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1410 (7th Cir.1984). Furthermore, we do not judge the credibility of witnesses. Id. "Our role is not to weigh the evidence in search of a preponderance as would a jury, but it is instead the more restrictive function of determining if the evidence in support of the verdict is substantial; a mere scintilla of supporting evidence will not suffice." Id.

Whether Perfetti's evidence is substantial is an extremely narrow question in this case, because Perfetti's evidence of liability went exclusively toward proving that the Bank's proffered explanations were "unworthy of credence." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), allow a plaintiff to prove employment discrimination with any of four different types of evidence. In general, a plaintiff may prove discrimination either directly, by proving that age was a determining factor in the employer's decision, or indirectly, by proving that the employer's proffered explanation is pretextual. Under the direct method of proof, the plaintiff's evidence may be either direct or circumstantial. Thus, the first type of evidence in a discrimination suit is direct evidence that age was a determining factor, such as discriminatory statements uttered by the employer's decision-maker. The second type of evidence is circumstantial evidence that age was a determining factor, such as a statistical imbalance in the employer's work-force. McDonnell Douglas and Burdine also allow the plaintiff to prevail under an indirect method of proof. Under this method, the plaintiff must first prove his or her prima facie case. The burden of production then shifts to the employer, who must articulate a lawful reason for its decision. To prevail, the plaintiff retains the burden of proof and must prove that the employer's articulated rationale is pretextual, either by showing that a discriminatory reason more likely motivated the employer or that the employer's proffered reason is "unworthy of credence." See generally La Montagne, 750 F.2d at 1409-10. The theory behind the indirect method of proof is that evidence of discrimination, including even circumstantial evidence, may be extremely difficult for a plaintiff to discover. Therefore, if the plaintiff proves that the employer's proffered explanation is pretextual, the jury may infer discrimination from that proof alone. Id. The indirect method of proof thus allows a plaintiff to prevail by bringing two additional types of evidence. The third type of evidence, therefore, is direct evidence of pretext, such as a contradiction between the employer's proffered justification at trial and documentary evidence from the time of the decision, or a contradiction among the witnesses to the employment decision at issue. Last, the fourth type of evidence is circumstantial evidence of pretext, such as evidence that the proffered justification is not a genuine job requirement or has been inconsistently applied to other employees.

In the present case, almost all of Perfetti's evidence fell into the fourth and weakest category, circumstantial evidence of pretext. He employed the indirect method of proof under the ADEA. He did not present even a scintilla of evidence that the Bank had a discriminatory attitude regarding his or anyone else's age, or that the Bank's policies had a discriminatory age-based impact on his or anyone else's employment. Furthermore, Perfetti's proof of pretext 2 was almost entirely indirect; he did not present even a scintilla of evidence to indicate that the Bank's reasons were pretexts for age discrimination. Age has been raised in this case only twice: Perfetti was in his mid-fifties at the time of the adverse employment decisions, and the persons who were hired in his stead were younger than he. 3 Finally, the Bank's employees did not contradict one another or the documentary evidence. Perfetti's only direct evidence of pretext is his own testimony contradicting a single detail of the testimony of one of the Bank's witnesses. As a result, Perfetti's case is virtually as indirect and circumstantial as possible; we have before us a "pure" unworthy of credence claim.

We emphasize that Perfetti's failure to bring any evidence regarding age does not defeat his claim per se; "[t]he special virtue of the indirect method of proof is that it allows victims of age discrimination to prevail without presenting any evidence that age was a determining factor in the employer's motivation." La Montagne, 750 F.2d at 1409-10. 4 Holding to the contrary would violate one of the purposes of McDonnell Douglas and Burdine, which is to permit plaintiffs to recover, even if they are unable to discover evidence of discrimination, simply by proving that the employer's proffered justification is unworthy of credence.

Once we accept that Perfetti's reliance on circumstantial "unworthy of credence" evidence does not defeat his claim, it is tempting to go to the other extreme. Because Perfetti's evidence goes only to the question whether the Bank's proffered justification is "unworthy of credence," the jury, in finding for the plaintiff, necessarily found the Bank's witnesses and explanations "unworthy of credence." But we cannot judge the credibility of the Bank's employees. Can we reverse a jury verdict based solely on a lack of credence without infringing on the jury's exclusive right to judge credibility ?

The answer is, "We can." Perfetti's lack of evidence regarding age cannot insulate his jury verdict from review for sufficiency of the evidence. Such a holding would require that virtually every unworthy of credence claim go to the jury. Let us backtrack for a moment. The standards for granting summary judgment, a directed verdict, and a judgment notwithstanding the verdict ("JNOV") are essentially the same; all of these motions "call upon the court to make basically the same determination--that there is no genuine issue of fact and that the moving party is entitled to prevail as a matter of law." Wright & Miller, Federal Practice and Procedure § 2713.1 at 613, § 2537 at 599 (1983). If we could never reverse a jury verdict for the plaintiff in an "unworthy of credence" claim on the ground of insufficiency of the evidence, then a district court could never grant summary judgment or a directed verdict for the employer; in every claim, the jury would have to be given its opportunity simply to disbelieve the employer. This result does not follow from Burdine and would overrule the basic requirement that a jury verdict be supported by "substantial" evidence. The purpose of Burdine was not to allow plaintiffs to go to the jury without presenting any evidence at all; its purpose was to allow plaintiffs to prove discrimination without presenting any evidence of discrimination, and solely with evidence of pretext. Furthermore, such a holding would be perverse. Cases based on indirect and circumstantial evidence of pretext should not be less subject to dismissal for insufficiency than cases based on evidence which is more probative...

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