Colosi v. Electri-Flex Co.
| Decision Date | 15 July 1992 |
| Docket Number | No. 91-3795,ELECTRI-FLEX,91-3795 |
| Citation | 965 F.2d 500 |
| Parties | 59 Fair Empl.Prac.Cas. (BNA) 1155, 59 Empl. Prac. Dec. P 41,553, 123 Lab.Cas. P 57,083, 22 Fed.R.Serv.3d 1164 Mariano COLOSI, Plaintiff-Appellant, v.COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James N. Vail (argued), Chicago, Ill., for plaintiff-appellant.
John F. Atkinson, Dale J. Atkinson (argued), David C. Thollander, Atkinson & Atkinson, Evanston, Ill., for defendant-appellee.
Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges.
This is a suit under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., with a pendent count for breach of contract under state law, brought by Mariano Colosi against his former employer, Electri-Flex Company. The district judge granted summary judgment for the defendant on both counts and dismissed the suit.
Electri-Flex is a small manufacturer of electrical products. It is owned by the Kinander family. Colosi was vice-president in charge of manufacturing operations--meaning that he oversaw the work in the factory--when he was fired at the age of 57. Because of his age and the fact that his duties were taken over by a pair of younger men, it was Electri-Flex's burden, if it wanted to get rid of the case at the summary judgment stage, to produce reasons, unrelated to age, for its action in firing Colosi. Lindsey v. Baxter Healthcare Corp., 962 F.2d 586, 587 (7th Cir.1992); Shager v. Upjohn Co., 913 F.2d 398, 400-01 (7th Cir.1990). It placed in the record nine affidavits, which portray Colosi as stubborn, irascible, and irresponsible. The most colorful accusation is that he gave one employee, who had displeased him by talking too much, a choice between a three-day suspension without pay and shouting at the top of his lungs for one hour outside the plant. (The employee chose the shouting option.) The most serious accusation is that Colosi failed to understand and use the output of a computer system that the company had installed in the hope of improving inventory control and otherwise minimizing its costs.
At this point Colosi had two ways of staving off summary judgment. Lindsey v. Baxter Healthcare, Inc., supra, at 587-88; Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988). The first was to create a genuine issue of the sincerity of the proffered reasons for his discharge: were they the real reasons, or pretexts? If the latter, the real reason may have been Colosi's age. The second route was to present direct evidence that his age had played a role in the company's decision. The record with which Colosi had to work consisted of his deposition and an affidavit by Wolbing, his understudy and (briefly) his successor, as well as the nine affidavits presented by the company.
There is no direct evidence of age discrimination. Colosi does state in his deposition that shortly before he was fired his boss twice asked when he was planning to retire and both times he replied, "Never," and Colosi asks us to infer that the company thought him too old to be working. But a company has a legitimate interest in learning its employees' plans for the future, and it would be absurd to deter such inquiries by treating them as evidence of unlawful conduct. Colosi also complains that his boss told him he was sick (though he wasn't) and ordered him to take sick leave and go to the Mayo Clinic for an examination. The day Colosi returned from his compelled "sick leave" was the day he was fired. But he does not explain the connection between the company's action and age discrimination. The Kinanders were no doubt trying to force him out (maybe they wanted to see how the plant would run without him) and they may in a clumsy way have been offering him a face-saving way out. The age discrimination law does not require firms to deal gracefully with employees they want to get rid of, though firms that do are probably sued less.
The more difficult question with respect to the age-discrimination count is whether there was a genuine issue concerning the sincerity of the company's proffered reasons for firing Colosi. Colosi points out that: not a single corporate record mentions any of his alleged shortcomings; one of the company's affidavits states that "during the period of August 1986 through October 1986 ... [the affiant] personally observed Mr. Colosi's manners in overseeing the foremen ... [he] would yell, scream, and swear at the foremen on a constant basis," when in fact Colosi was on his forced sick leave from August 22 to October 28; and the Wolbing affidavit states that "at no time did Mr. Colosi indicate that he did not understand the computer printouts." There is a little more, and Colosi uses the forced sick leave to cast doubt on the company's bona fides in dealing with him, but these are the main items. They don't, in our view, quite create a genuine issue of material fact. Take the point about the corporate records. Electri-Flex is a small, family-owned company. It has no more than a hundred employees. Family-owned companies of this size conduct their operations with less formality than large publicly owned corporations. Blizzards of paper are one of the symptoms of bureaucracy, and bureaucracy is the plague of large, not of small, enterprises. As for the "personally observed" affidavit: It was prepared several years after the events, and the affiant may innocently have confused the dates. Maybe not. Maybe the affidavit is perjurious. We can imagine an argument that it is and that this shows that the reasons for firing Colosi given in all the affidavits are a tissue of fabrications by the Kinanders (the affidavit in question is that of a junior Kinander). Colosi did not make the argument in the district court. There he argued merely that the court should disregard the affidavit. Fine. That left eight uncontradicted affidavits enumerating the many grounds for firing Colosi. The shouting incident, for example, was and is unrebutted, indeed admitted.
Colosi broadens his attack somewhat in this court by saying that the issue "is whether the plaintiff's proofs of inconsistencies and implausibilities in the defendant's proffered reasons for discharge reasonably could support an inference that the defendant did not act for non-discriminatory reasons." This is followed by a list of alleged inconsistencies and implausibilities, most inconsequential but including as number 14 the Kinander affidavit described as "exceedingly suspect ... mistaken if not perjurious." Buried in this submission is an interesting general question that we haven't seen discussed before. If a party presents multiple affidavits on summary judgment, covering the same ground, and some are shown to be unworthy of belief but others are not, do those others entitle the party to summary judgment or can the falsity of some support a negative inference about the others? We should think the latter, at least in extreme cases. If (to choose a number at random) a party presents nine affidavits each saying the same thing, and eight are shown to be perjurious, we would doubt that the party was entitled to summary judgment merely because the last stood uncontradicted. But we do not understand, from the passages quoted above from his brief, that Colosi is arguing that the falsity of one Kinander's affidavit (more precisely of part of that affidavit) made any of the defendant's other affidavits unworthy of belief. If that is his argument, it is too sketchily made to require us to consider it. In re James Wilson Associates, 965 F.2d 160, 170 (7th Cir.1992), and cases cited there.
As for Wolbing's affidavit--the only affirmative evidence that Colosi tendered besides his own deposition--the district judge read "indicate" as "say": at no time had Colosi told Wolbing that he did not understand the computer printouts. And the judge pointed out sensibly that the fact that Colosi never confessed to Wolbing his inability to use the computer's output didn't mean he could use it. The alternative way to read the affidavit, however, and the most natural way given the context, is that Colosi never gave Wolbing any indication that he couldn't read the printouts, and Wolbing as his deputy would have picked up any such indication. Colosi would be entitled to...
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