Anderson v. Baxter Healthcare Corp.

• Decision Date: 11 January 1994
• Docket Number: No. 92-3482,92-3482
• Citation: 13 F.3d 1120
• Parties: 63 Fair Empl.Prac.Cas. (BNA) 1016, 63 Empl. Prac. Dec. P 42,759 Arthur S. ANDERSON, Plaintiff-Appellant, v. BAXTER HEALTHCARE CORP., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1120

13 F.3d 1120

63 Fair Empl.Prac.Cas. (BNA) 1016,

63 Empl. Prac. Dec. P 42,759

Arthur S. ANDERSON, Plaintiff-Appellant, v. BAXTER HEALTHCARE CORP., Defendant-Appellee.

No. 92-3482.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 29, 1993.

Decided Jan. 11, 1994.

Glen Edric Berman (argued), Vincent L. DiTommaso, DiTommaso & Berman, Oakbrook Terrace, IL, Thomas Wilson Waters, Kemp & Capanna, Oak Brook, IL, for plaintiff-appellant.

David J. Parsons, Dana S. Connell (argued), Kathryn A. Mrkonich, Wildman, Harrold, Allen & Dixon, Chicago, IL, for Baxter Healthcare Corp.

Before FLAUM, EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Arthur S. Anderson began working for Baxter Healthcare Corporation as a mechanic in the maintenance department of Baxter's Morton Grove, Illinois facility on September 2, 1969. At the time of his discharge, Anderson, age 51, was unit manager for heating, ventilating, and air conditioning ("HVAC") at Baxter's Deerfield, Illinois facility. In that position, Anderson reported to K.C. Dhingra, manager of the Deerfield facility's energy systems/building maintenance department. Dhingra reported to Eugene Mellon, Director of Property Management for Baxter's McGaw Park and Deerfield facilities. When discharged, Anderson was the highest paid hourly maintenance worker at Baxter's Deerfield operation.

As unit manager, Anderson's responsibilities included ongoing and preventative maintenance of the HVAC system as well as responsibility for maintaining the electrical switch gear. Anderson was discharged in February, 1989 after several incidents occurred which Baxter contends "existed as a direct result of Anderson's inattentiveness to preventative maintenance and overall poor work performance."

The first of these incidents occurred in September 1988. An inspection sponsored by Baxter's insurance company revealed that a fire valve had been closed for months in Deerfield building # 3 and had not been properly identified as being closed in violation of fire marshal policy. As a result, the emergency water supply was not available. Mellon testified that he doubted whether Baxter's insurance company would have covered the loss if the building had burned. Anderson admitted that Mellon warned him about the seriousness of this incident.

Shortly after the 1988 inspection, a fire broke out in a housekeeping closet in Deerfield Building # 6. When the fire alarm was pulled, the annunciation system ¹ failed to operate. An investigation revealed that the fuses in the fire alarm system had been pulled, causing the annunciation system to fail. Apparently the fuses were pulled because the smoke detectors in the building became extra sensitive during the winter, causing the fire alarm to go off frequently. Mellon testified that both Anderson and Dhingra had responsibility for maintaining the fire alarm system.

In January 1989, the main electrical breaker shorted out in Deerfield Building # 4 causing the building to be without heat for an entire day. Another investigation disclosed that Anderson had failed to have infra red scans performed on the high voltage switch gear in the breaker to ensure that it was operating properly. Dhingra had previously instructed Anderson to perform the infra red scans.

Finally, on January 23, 1989 a newly installed air handler motor in Deerfield Building # 6 shorted out, tripping the main breaker in the building. As a result, all power in the building was knocked out. Smoke from the short caused an employee to pull the fire alarm. All employees were then forced to evacuate the darkened building. Mellon testified in his deposition that another employee installed the motor but that Anderson was responsible for checking to see that it was operating properly. Mellon acknowledged that Anderson was not at work the day the motor was installed.

Because of this incident, Anderson was suspended pending an investigation. In February 1989, Mellon and Baxter Human Resources Representative Peggy Wielgos met with Anderson and told him that because of his overall poor performance in general and the January 23 incident in particular, the company had to terminate his employment.

Anderson then filed this case in the district court claiming that Baxter discriminated against him because of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 623 et seq. After the close of discovery, Baxter moved for summary judgment on the basis that Anderson had failed to raise a genuine issue of material fact as to his age discrimination claim. The district court agreed, finding that Baxter had articulated a legitimate non-discriminatory reason for Anderson's discharge and that Anderson could not show that Baxter's reason was a pretext for discrimination. This appeal followed.

Standard of Review

We review de novo a district court's grant of summary judgment, viewing the record in the light most favorable to the non-moving party. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.1992).

Discussion

We spend some time discussing the legal framework applicable in age discrimination cases because there is a dispute between the parties as to the proper legal standard to be applied.

A plaintiff may prove age discrimination in one of two different ways. "She may try to meet her burden head on by presenting direct or circumstantial evidence that age was the determining factor in her discharge. Or, as is more common, she may utilize the indirect, burden-shifting method of proof for Title VII cases originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later adapted to age discrimination claims under the ADEA." McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir.1992) (quoting Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988)).

In order to prevail under the McDonnell Douglas burden-shifting approach, the plaintiff must initially establish a prima facie case of discrimination. In order to establish a prima facie case, the plaintiff must show: (1) she was a member of the protected class (age 40 or over), (2) she was doing the job well enough to meet her employer's legitimate expectations, (3) she was discharged or demoted, and (4) the employer sought a replacement for her. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1039 (7th Cir.1993).

If the plaintiff succeeds in establishing a prima facie case, this creates a rebuttable presumption of discrimination, and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee's discharge. If the employer is successful, the presumption dissolves, and the burden shifts back to the employee to show that the employer's proffered reasons are a pretext for age discrimination. Weihaupt v. American Medical Ass'n, 874 F.2d 419, 426-427 (7th Cir.1989).

The federal courts, however, have not been entirely clear on what constitutes a showing of pretext. Three competing rules have been developed. Two of these approaches have been referred to by one commentator as the "pretext-only" and "pretext-plus" rules. See Catherine J. Lanctot, The Defendant Lies and the Plaintiff Loses: The Fallacy of the "Pretext-Plus" Rule in Employment Discrimination Cases, 43 Hastings L.J. 57 (1991).

Under the "pretext-only" rule, if the plaintiff can successfully show that the reasons proffered by the employer for her discharge are factually false, then she is automatically entitled to a judgment in her favor. According to these courts, a finding by the district court that the employer's proffered justification is false "is itself equivalent to a finding that the employer intentionally discriminated." Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1396 (3rd Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 592, 83 L.Ed.2d 702 (1984) (emphasis in original).

The second approach is a version of the "pretext-only" rule that has been adopted by this circuit. Under this rule, "[i]f the employer offers a pretext--a phony reason--for why it fired the employee, then the trier of fact is permitted, although not compelled, to infer that the real reason was age." Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655, 657 (7th Cir.1991) (en banc) (citing Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir.1990)).

The third variation is "pretext-plus." The "pretext-plus" courts require more than a simple showing that the employers' proffered reasons are false. They require both a showing that the employer's reasons are false and direct evidence that the employer's real reasons were discriminatory. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir.1990) ("In the final round of shifting burdens, it is up to plaintiff, unassisted by the original presumption, to show that the employer's stated reason 'was but a pretext for age discrimination.' To achieve this plateau, an ADEA plaintiff must do more than simply refute or cast doubt on the company's rationale for the adverse action. The plaintiff must also show a discriminatory animus based on age.") (citations omitted). See also, Biggins v. Hazen Paper Co., 1993 WL 406515, * 5, 1993 U.S.App. LEXIS 26865, * 14 (1st Cir.1993).

In Saint Mary's Honor Ctr. v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), the Supreme Court recently addressed the issue of which of these competing pretext rules should be applied in discrimination cases. There, Hicks brought a Title VII action against St. Mary's alleging that he was illegally discharged because of his race. The district court found that Hicks had established a prima facie case and that St. Mary's had offered a non-discriminatory reason for Hicks' discharge. However, the district court, acting as the trier of fact, found that the reasons St. Mary's gave were not the real reasons for Hicks' discharge. The district court nonetheless held that Hicks had failed to meet his ultimate burden of...