Coco v. Elmwood Care, Inc.

• Citation: 128 F.3d 1177
• Decision Date: 10 November 1997
• Docket Number: No. 97-1697,97-1697
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 513, 72 Empl. Prac. Dec. P 45,055 Ludwig A. COCO, Plaintiff-Appellant, v. ELMWOOD CARE, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1177

128 F.3d 1177

75 Fair Empl.Prac.Cas. (BNA) 513,

72 Empl. Prac. Dec. P 45,055

Ludwig A. COCO, Plaintiff-Appellant, v. ELMWOOD CARE, INC., Defendant-Appellee.

No. 97-1697.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 1, 1997.

Decided Nov. 10, 1997.

Robert A. Coco, John J. Franczyk, Jr. (argued), Des Plaines, IL, for Plaintiff-Appellant.

Davi L. Hirsch (argued), Fox & Grove, Chicago, IL, Mark J. Bereyso, Judith S. Sherwin, Levenfeld, Eisenberg, Janger, Glassberg & Samothy, Chicago, IL, for Defendant-Appellee.

Before POSNER, Chief Judge, and ESCHBACH and COFFEY, Circuit Judges.

POSNER, Chief Judge.

The district judge granted summary judgment for the defendant in a discrimination case on the ground that the plaintiff had failed to prove that he was meeting the legitimate expectations of his employer when he was fired. We think this is right, but our main point in writing is to emphasize the importance of the "legitimate expectations" element in the ubiquitous burden-shifting formula of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and, more broadly, to emphasize that the prima facie case under McDonnell Douglas must be established and not merely incanted.

The formula is for cases, such as this, where there is no direct evidence of discrimination--here, no admissions by the defendant nursing home, or testimony, that it fired the plaintiff, Coco, because of his age. To stave off summary judgment, Coco had to show that he was performing up to the employer's legitimate expectations, e.g., Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 892 (7th Cir.1997); Denisi v. Dominick's Finer Foods, Inc., 99 F.3d 860, 864 (7th Cir.1996); Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 332 (1st Cir.1997); Miller v. Citizens Security Group, Inc., 116 F.3d 343, 346 (8th Cir.1997), and that he was replaced by a much younger person; he showed the second but not the first. Had he shown both, the burden would have shifted to the defendant to present evidence of a noninvidious reason for the dismissal, and if the defendant then satisfied that burden, the plaintiff, to stave off summary judgment, would have to show that the reason was phony ("pretextual"). St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Actually to prove a violation, the plaintiff would have to persuade the trier of fact that the pretext was a pretext for discrimination, id. at 511, 113 S.Ct. at 2749; but the trier of fact could, though it would not be compelled to, infer discrimination from the evidence constituting the prima facie case. Id.; Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1399-1400 (7th Cir.1997); EEOC v. G-K-G, Inc., 39 F.3d 740, 747 (7th Cir.1994); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir.1994); Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1225 n. 6 (3d Cir.1994).

We do not reach the pretext stage, however, unless the plaintiff gets over the "legitimate expectations" hurdle, and it is here that confusion begins. The defendant's expectations are not legitimate if they are phony; so if they are argued to be phony, the issue of legitimate expectations and the issue of pretext seem to merge. Coco wants us to merge them--wants us, since he was fired and replaced by a much younger person, to proceed directly to the pretext stage.

To do so would be contrary to the thinking behind the formula. The formula is best understood as derived from a judgment about what evidence would be sufficient to persuade a rational factfinder that the defendant had discriminated against the plaintiff. The judgment is that if the noninvidious reason offered by the defendant is not credible, the factfinder can reasonably, though he need not, infer that the real reason was a discriminatory one. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). This judgment would not make sense without imposing certain preconditions. The most obvious is that the plaintiff be a member of a group protected by the antidiscrimination law in question. If he is not, no inference of discrimination can be drawn from the defendant's inability to produce a convincing reason for why the plaintiff was fired or suffered some other adverse personnel action of which he is complaining.

Less obvious but still important is that the plaintiff have been performing up to the defendant's expectations. If he was not, the inference that he would not have been fired had he not been a member of a protected group is very weak--so weak that the factfinder should not be allowed to speculate on the motive for the termination if all the plaintiff can produce by way of evidence is that he is a member of a protected group and was replaced by someone from another group (in an age-discrimination case, the group of the "much younger," O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, ----, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996); Hartley v. Wisconsin Bell, Inc., supra, 124 F.3d at 892). So in such a case the defendant is not put to the burden of stating the reasons for the plaintiff's termination. Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir.1997); Mills v. First Federal Savings & Loan Ass'n, 83 F.3d 833, 844 (7th Cir.1996); Madison v. Frank, 966 F.2d 344, 346 (8th Cir.1992); McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th Cir.1990). If the plaintiff has other evidence of discrimination, well and good; but if he has nothing else, and is therefore totally reliant on the McDonnell Douglas formula, he is out of luck if he can't show that he was meeting his employer's legitimate expectations.

If he gets over that hurdle, the issue of legitimate expectations (meaning simply bona fide expectations, for it is no business of a court in a discrimination case to decide whether an employer demands "too much" of his workers) may indeed merge with the issue of pretext. If the...