Castleman v. Acme Boot Co., s. 90-3384

• Decision Date: 09 April 1992
• Docket Number: Nos. 90-3384,91-2308,s. 90-3384
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 969, 58 Empl. Prac. Dec. P 41,480, 60 USLW 2747 Jerry CASTLEMAN, Plaintiff-Appellee, v. ACME BOOT COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1417

959 F.2d 1417

58 Fair Empl.Prac.Cas. (BNA) 969,

58 Empl. Prac. Dec. P 41,480, 60 USLW 2747

Jerry CASTLEMAN, Plaintiff-Appellee, v. ACME BOOT COMPANY, Defendant-Appellant.

Nos. 90-3384, 91-2308.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 28, 1991.

Decided April 9, 1992.

Paul R. Welch (argued), Dawn L. Wall, Costigan & Wollrab, Bloomington, Ill., for plaintiff-appellee.

Alfred B. LaBarre (argued), Robert G. Heckenkamp, Duane D. Young, Heckenkamp, Simhauser & LaBarre, Springfield, Ill., for defendant-appellant.

Before CUMMINGS and CUDAHY, Circuit Judges, and WISDOM, Senior Circuit Judge. ^*

CUMMINGS, Circuit Judge.

Plaintiff Jerry Castleman, a former sales representative for defendant Acme Boot Company ("Acme"), filed a four-count complaint against Acme after his employment was terminated on February 9, 1987. At that time he was 51 years old and eight months from becoming eligible for early retirement. Count I was based on the Employee Retirement Income Security Act ("ERISA") (29 U.S.C. § 1140). Count II was brought under the Age Discrimination in Employment Act ("ADEA") (29 U.S.C. § 623). Count III charged that Acme had breached an employment agreement, and Count IV charged that Acme had breached a covenant of good faith and fair dealing. ¹

A jury found Acme liable under Count II, the ADEA claim. In a separate trial to determine damages for the ADEA violation, the jury found that Acme had willfully violated ADEA. After the damages trial, the district court held in favor of Acme on Count I, the ERISA claim. At the same time, the district court denied Acme's motions for judgment notwithstanding the verdict ("JNOV") on the jury's ADEA and willfulness findings. Without elaborating, the judge below stated that "Plaintiff presented evidence in support of his claims and the jury obviously found at least some of Plaintiff's evidence to be credible" (Appellant's App. at 4). The district court therefore entered a judgment of $40,000 for Castleman on the ADEA claim--$20,000 for the violation itself and $20,000 as liquidated damages based on the jury's willfulness verdict. On appeal, Acme contends that there was no evidence to support Castleman's age discrimination claim. Acme also contends that the evidence does not support the jury's finding of willfulness.

I.

Acme hired Castleman in October 1972 as a salesman pursuant to an oral employment contract. Castleman acted as a manufacturer's representative, soliciting orders for Acme boots at various retail outlets in his assigned territory. As compensation, Castleman received a commission on his sales. Although his territory varied over his career, he worked for the most part in the state of Illinois. In October 1982, after working for Acme for ten years, Castleman became entitled to a company pension upon reaching the age of 65. Castleman was terminated in February 1987, at which time he was 51 years old.

Castleman's termination did not affect his pension rights payable at age 65. The termination, however, occurred approximately eight months before Castleman would have become eligible for early retirement at the age of 55 instead of 65. Under Acme's pension plan, this benefit accrued when an employee worked at the company for 15 years. No other person in Castleman's division was near the 15-year milestone at the time of his firing. Three other men in Castleman's division, however, were older than Castleman in February 1987, and four men had more longevity than Castleman. Castleman's immediate supervisor testified that he was unaware of Castleman's exact age and his pension status when he was terminated. Castleman was unable to prove discharge of any other vested employees before they reached the 15-year milestone.

Acme contends that Castleman was terminated because he ranked next to last in sales performance among the salesmen in his eleven-man sales division in 1986 and in January 1987 (considering the two periods separately). Different salesmen were last in 1986 and January 1987; therefore, over these two periods Castleman's record was arguably the worst in his division. While admitting the accuracy of these figures, Castleman disputes their proper interpretation. The salesmen at Acme were judged by comparing the number of pairs of shoes sold in their territory against the number sold in the prior year. This comparison was made even if part of their territory was previously handled by a different salesperson. To support his argument that his supposed poor performance was a pretext for age discrimination, Castleman contends that his sales statistics were not fairly evaluated by the company because he was given additional territory in 1986, with his sales being compared to sales of an established salesman who had handled this territory before him. He also asserts that changes in Acme's credit approval of several of his customers adversely affected his sales performance. As evidence of his strong performance, Castleman further points to two awards he won in the mid-1970s for regional sales performance and customer service, as well as to an award he received in 1984 for selling more than one million dollars worth of boots for ten consecutive years.

II.

The district court's decision to deny Acme's JNOV motions must be reviewed de novo. Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 15 (7th Cir.1987). We therefore evaluate the JNOV motions under the same standard as the district court did. Acme bears a heavy burden: We can conclude that the district judge erred in denying Acme's JNOV motions only if the evidence presented at trial, in conjunction with reasonable inferences drawn from the evidence, could not lead a reasonable jury to find that age was a determining factor in Castleman's firing when viewed in the light most favorable to Castleman. Holzman v. Jaymar-Ruby, Inc., 916 F.2d 1298, 1299 (7th Cir.1990). Castleman's evidence, however, must be substantial; "a mere scintilla of evidence will not suffice." LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405, 1410 (7th Cir.1984).

ADEA makes it illegal for an employer to "discharge any individual * * * because of such individual's age." 29 U.S.C. § 623(a)(1). This Court has interpreted "discharge because of age" to mean that the employer would not have discharged the employee if not for the employee's age. LaMontagne, 750 F.2d at 1409. Thus it is not necessary that age be the only factor in the discharge; it need only be a "but-for" factor. Id. An employer, of course, does not normally memorialize an intention to discriminate on the basis of age. Direct evidence, such as an employer statement that reveals hostility to older workers, is rarely found. Plaintiffs sometimes provide circumstantial evidence such as statistics showing a pattern of discriminatory treatment of older workers. See Perfetti v. First National Bank of Chicago, 950 F.2d 449, 450 (7th Cir.1991). In addition, the Supreme Court has expressly authorized the use of indirect evidence in discrimination cases under a burden-shifting model set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668; see Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1212 (7th Cir.1985) (noting widespread adoption of the McDonnell Douglas model in ADEA actions).

A plaintiff can establish a prima facie case of age discrimination under this model if he shows that (1) he is over 40 years old, (2) he was doing his job well enough to meet his employer's legitimate expectations, (3) he was discharged, and (4) the employer sought a replacement. Overgard v. Cambridge Book Co., 858 F.2d 371, 375 (7th Cir.1988). Upon such a showing, the burden of production shifts to the defendant to produce evidence of a legitimate reason for the discharge. The plaintiff, who retains the burden of proof, must show that the defendant's rationale is pretextual, typically by attacking the believability of the proffered rationale. Graefenhain, 827 F.2d at 17-18.

Once a trial has been conducted, this Court will not decide whether a plaintiff has met her burden of making a prima facie case, or whether a defendant has met the alternate burden of producing evidence of a legitimate rationale for discharge. Grohs v. Gold Bond Bldg. Products, 859 F.2d 1283, 1286 (7th Cir.1988), certiorari denied, 490 U.S. 1036, 109 S.Ct. 1934, 104 L.Ed.2d 405. Rather, we review the record as a whole to determine whether substantial evidence of age discrimination supports the verdict. Perfetti, 950 F.2d at 450. Our evaluation of the evidence is informed by an awareness of the McDonnell Douglas model and the central reason for its existence--the normal inability of a plaintiff to obtain direct evidence of age discrimination.

Besides the mere fact that he was 51 years old when fired, the only other evidence directly bearing on Castleman's age related to his pension. Castleman testified at trial, and it is undisputed, that he was eight months away from his 15-year anniversary with Acme, and that on this anniversary he gained the right to retire at age 55 instead of age 65. Although Castleman did not present any evidence that this right of early retirement would cost Acme money, we believe that this is a reasonable inference the jury could make in the absence of any contrary evidence introduced by Acme.

Acme never expressly contends that evidence regarding the timing of Castleman's firing cannot support the verdict of age discrimination because it is not sufficiently related to Castleman's age. This is understandable, since this Circuit has made clear that evidence of discrimination on the basis of economic factors related to age may support a verdict of age discrimination. Wheeldon v. Monon Corp., 946 F.2d 533 (1991); Jardien v. Winston Network, Inc., 888 F.2d 1151 (1989); Metz v. Transit Mix, Inc., 828 F.2d 1202 (1987). ² The Third Circuit in White v. Westinghouse Electric Co., 862 F.2d 56 (3d Cir.1988), cited Metz with approval when confronted with a...