Denisi v. Dominick's Finer Foods, Inc.

• Decision Date: 01 November 1996
• Docket Number: No. 95-3345,95-3345
• Citation: 99 F.3d 860
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 360, 69 Empl. Prac. Dec. P 44,368 Robert DENISI, Plaintiff-Appellant, v. DOMINICK'S FINER FOODS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 860

99 F.3d 860

72 Fair Empl.Prac.Cas. (BNA) 360,

69 Empl. Prac. Dec. P 44,368

Robert DENISI, Plaintiff-Appellant, v. DOMINICK'S FINER FOODS, INC., Defendant-Appellee.

No. 95-3345.

United States Court of Appeals Seventh Circuit.

Argued April 2, 1996.

Decided Nov. 1, 1996.

Burr E. Anderson (argued), Anderson & Franklin, Chicago, IL, for Plaintiff-Appellant.

Brian W. Sill and Mark A. Lies, II, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Defendant-Appellee.

Before POSNER, Chief Judge, and RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

Robert Denisi brought suit against Dominick's Finer Foods, Inc. ("Dominick's") under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. He alleged discriminatory termination from his position as store manager. The district court granted Dominick's motion for summary judgment. For the reasons that follow, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

Robert Denisi was born on October 27, 1947. He began working for Dominick's at the age of seventeen and worked his way up to store manager. After working twenty-eight years at Dominick's, twelve of those years as store manager, the store discharged him on February 3, 1993. In this ADEA action, the company justifies its decision on the ground that Mr. Denisi had a "history of poor job performance" and had violated the company policy that no out-of-date or out-of-code product be sold in any Dominick's store. Mr. Denisi claims that this characterization of his employment record is pretextual. In determining whether there is a genuine issue of triable fact, we review, de novo, the summary judgment record in the light most favorable to Mr. Denisi, the nonmoving party. Fed.R.Civ. P. 56(c).

1.

Mr. Denisi's focus on his employment history begins in March 1991. At that time he was transferred from the Dominick's store in Lincolnwood to the one in Morton Grove. In his view, the transfer was a routine one; he was asked to address declines in sales, cleanliness and employee morale that the Morton Grove store was experiencing. According to Dominick's, however, the transfer resulted from Mr. Denisi's "minimally acceptable" performance ratings in 1990 and his performance problems in the Lincolnwood store. Dominick's claims that management believed that the move would give Mr. Denisi a fresh start at a store in good condition. The memorandum of February 28, 1991, from Michael Leitner, the Director of Area Operations ("DAO"), who was Mr. Denisi's immediate supervisor at that time, suggests that Mr. Denisi had been told to attain certain standards with respect to store conditions and profits in the Lincolnwood store and that he had not succeeded:

The current opportunities at Store # 72 [the Lincolnwood store] have not completely been addressed or solved. Your transfer from Store # 72 does not relinquish you of the current challenges you must address. Store conditions and gross margins have not reached the level we have both agreed upon earlier this year. You, as the store manager must continue to take the leadership role. Your appraisal of your department heads have shown you have the knowledge and ability to perform in this role. I now ask that you remain the leader in a consistent fashion.

Store # 9 [the Morton Grove store] presents a challenge of a different nature. The store's current condition will be reviewed with you after the first week. I will insist that current levels of achievement be kept and additional opportunities be analyzed.

I'm pledging full merchandiser support, however, your interaction and desire must also be available.

R.39, tab 9.

In May 1992, DAO Leitner was replaced by Charles Rangonese as Mr. Denisi's supervisor. After the 1992 mid-year evaluation Dominick's description of the situation in mid-1992 differs from Mr. Denisi's. Dominick's states that, in the summer of 1992, DAO Rangonese warned Mr. Denisi that his position as store manager was at risk and asked him to establish performance objectives in his action plan. The DAO returned Mr. Denisi's first draft and told him to make his plan more specific. Human Resources Representative Erlemann critiqued Mr. Denisi's action plan and expressed concern about his job performance, but also offered counseling. A co-manager, brought in to help Mr. Denisi in July 1992, improved conditions in the Morton Grove store during his tenure, but things worsened when he left in December. On several occasions during 1992, John Mattingly, the grocery merchandiser, saw unacceptable conditions in many parts of Mr. Denisi's store and discussed with him such problems as untidy store shelves that were not straightened nightly, dirty shelves and expired or out-of-code products. According to Mattingly, Mr. Denisi had no sense of urgency or desire to cure the problems.

                DAO Rangonese asked Mr. Denisi to draft an "action plan."   Such a plan is required of an employee whose performance is minimally acceptable;  it is intended to raise his performance level.  Mr. Denisi submitted his plan around the middle of September.  He asserts that neither the DAO nor the human resources representative discussed his plan with him.  Two months later, the DAO responded merely by asking Mr. Denisi to rewrite his objectives, specifying how the goals in his action plan would be accomplished.  Mr. Denisi asserts that he submitted a revised plan.  He also evaluated his own overall performance as below meeting Dominick's requirements.  He now submits, however, that his self-evaluation contained arithmetic errors, and that he should have concluded that he met Dominick's requirements
                

On January 23, 1993, Mattingly again visited Mr. Denisi's store. He found several sale items empty and out of stock, store shelves not properly straightened and blocked, and more than $1,000 worth of out-of-code dairy products in the dairy cooler. Mattingly and Erlemann met with Mr. Denisi later that day. They discussed Mr. Denisi's past performance problems, his failure to walk the store daily to ensure that it was ready for business, and the condition of his dairy cooler. According to Dominick's, Mr. Denisi admitted that he had not inspected the dairy cooler in months, that he was not walking the store on a daily basis, and that he could not motivate himself to do his job. According to Mr. Denisi, however, the out-of-code product was the co-manager's problem because that individual was the grocery department manager and Mr. Denisi was the store manager. Mr. Denisi also explained that it was not surprising that some product would eventually go out of code before it was sold. In this instance, Mr. Denisi had received a substantial shipment of sour cream from the warehouse shortly before the expiration date of January 23, 1992, and could not sell it before that date. He notified Mattingly of the situation and asked for credit for the items he could not sell. The out-of-code product was being stored in the back cooler; however, a few packages were on the shelves available to consumers.

After the meeting with Mattingly and Erlemann, Mr. Denisi was sent home and told to begin his vacation. Shortly after January 23, 1993, Erlemann and Dominick's administrators met to consider Mr. Denisi's situation. On February 3, 1993, they told Mr. Denisi that his employment was terminated, with ten weeks of severance pay and outplacement services to assist him in finding a new job. He was replaced by a younger manager.

2.

Dominick's conducts a semiannual appraisal of its employees' work performances. Mr. Denisi and Dominick's clearly disagree about the acceptability of Mr. Denisi's work performance in the years before he was discharged. They also interpret differently the results of Mr. Denisi's ratings by his supervisors.

Dominick's employs a performance rating scale to rate its retail managers: Superior, Exceeds Requirements, Meets Requirements, ¹

                1 Marginal, 2 and Unsatisfactory.  Each ranking could be qualified by a "k" or  "-."  Mr. Denisi's ratings for his 1990 performance were all substandard--either "meets requirements minus" "MR-" or Marginal "M" 3. In the 1991 appraisal there was a slight improvement;  the DAO rated Mr. Denisi's performance closer to "MR." Nevertheless, Mr. Denisi's mid-year 1992 rating was again below performance level.  At that time, DAO Rangonese told Mr. Denisi that his position as a store manager could be jeopardized by those ratings.  Human Resources Representative Erlemann counseled Mr. Denisi about improvements in his performance and a co-manager was brought into the Morton Grove store.  At the end of 1992, Mr. Denisi's personal performance was rated as "below meets requirements" and "marginal." 4  At oral argument Mr. Denisi's counsel stated that Mr. Denisi's average rating, "MR-," was below "meets requirement" but above "marginal."   He contends that such ratings are still within the satisfactory level of performance
                

3.

Mr. Denisi also submits that two younger managers similarly situated were given better treatment. John Sabella, born in 1957, received an "MR-" rating in December 1992 and an "M" on his mid-year 1993 evaluation. Jorge Rodriguez, born in 1958, received "MR-" ratings in 1992 and mid-year 1993. Like Mr. Denisi, Sabella and Rodriguez received letters from Erlemann in September 1992 expressing concern about their performance as managers. In March 1993 Sabella received another letter informing him that he was on probation. In August, with performance still below "MR," he was given thirty days to improve; he was eventually terminated. In March 1993, Rodriguez was also notified by letter that he was on probation. In February 1994, after a freezer broke down in the deli department of his store, Rodriguez went home. As a result, he was suspended for a week and warned that a similar occurrence could result in termination. In June 1994, with his performance still below "MR," Rodriguez was given the choice of termination with...