Grohs v. Gold Bond Bldg. Products, a Div. of Nat. Gypsum Co., s. 87-1527

• Decision Date: 02 November 1988
• Docket Number: Nos. 87-1527,87-1568,s. 87-1527
• Citation: 859 F.2d 1283
• Parties: 47 Fair Empl.Prac.Cas. 1846, 47 Empl. Prac. Dec. P 38,330, 57 USLW 2279 Dennis GROHS, Plaintiff-Appellee, Cross-Appellant, v. GOLD BOND BUILDING PRODUCTS, A DIVISION OF NATIONAL GYPSUM COMPANY, Defendant- Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1283

859 F.2d 1283

47 Fair Empl.Prac.Cas. 1846,

47 Empl. Prac. Dec. P 38,330, 57 USLW 2279

Dennis GROHS, Plaintiff-Appellee, Cross-Appellant, v. GOLD BOND BUILDING PRODUCTS, A DIVISION OF NATIONAL GYPSUM

COMPANY, Defendant- Appellant, Cross-Appellee.

Nos. 87-1527, 87-1568.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 13, 1987.

Decided Sept. 27, 1988.

As Amended Sept. 29, 1988.

As Amended on Denial of Rehearing and Rehearing En Banc Nov. 2, 1988.

Richard E. Lieberman, Ross & Hardies, Chicago, Ill., for defendant-appellant/cross-appellee.

Kathleen Baiunas, Chicago, Ill., for plaintiff-appellee/cross-appellant.

Before POSNER, FLAUM, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

The claim in this case is one of age discrimination. At age 51, Dennis Grohs was fired by his employer of 22 years, Gold Bond Building Products, allegedly because he had difficulty getting along with his peers. Grohs filed an age discrimination suit.

A bench trial was held in district court. Judge Moran, in an oral ruling from the bench, found that Gold Bond was guilty of a nonwillful violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Sec. 621, et seq., ("ADEA").

Both parties appeal; Gold Bond claiming that there was no ADEA violation; and Grohs claiming that the violation was willful. Because there was insufficient evidence to support a finding that age was a determinative factor in Grohs' dismissal, we reverse.

I.

Gold Bond, a division of National Gypsum Co., manufactures wallboard at a plant in Waukegan, Illinois. In 1979, Dennis Grohs became the Waukegan board plant superintendent. During the early 1980's, the plant suffered a substantial decline in business and a large number of employees were laid off. In February, 1982, the plant was shut down indefinitely, retaining only four supervisors to act as custodians of the equipment. This skeletal staff consisted of Dennis Grohs and three others.

Gold Bond reopened the plant on a 90-day trial basis in early 1983. The company's upper management had attributed the plant's earlier problems to a very bad labor relations environment, particularly in terms of the relationship between the supervisors and the hourly employees. Consequently, Gold Bond decided to implement a new management philosophy with greater emphasis on improving the labor relations atmosphere. Because of this new focus, Gold Bond's management viewed a cooperative attitude as a critical element in keeping the plant open after the trial period.

Michael Ward, the new plant manager, was assigned to reopen the plant, to improve employee relations, and to begin operating successfully within 90 days. He began by reviewing the performance records of the four members of the plant's skeletal crew. Ward's review of Dennis Grohs' last three written evaluations revealed that Grohs had experienced significant problems with labor relations.

In addition to the written record, Ward was provided with information concerning Grohs by other individuals from Gold Bond's management. Included among these were reports that Grohs had been a "disaster" in terms of his labor relations with the employees in his prior role as plant board superintendent. The former plant manager, Tom Brooks, informed Ward that Becky Parkman, the personnel safety supervisor, had complained that Grohs had pulled her on to his lap and grabbed her by the crotch during a supervisor's dinner and that later Grohs spoke of Parkman and another female employee as lesbians. Brooks also relayed information to Ward from Darlene Ramig, the payroll secretary, to the effect that Grohs had told her that he would help her get promoted if she would go to a nearby motel with him.

Jon Roth, the former union president, told Ward that Grohs was "the root cause of most labor management problems at the plant and that the union had repeatedly complained to management about Grohs' actions." Roth also told Ward that black employees were outraged by Grohs' racist references to them as "nigger" and "boy."

After receiving these reports of Grohs' conduct ¹ from both Roth and Brooks, reviewing Grohs' file, and personally observing Grohs, Ward decided that Dennis Grohs did not have the new "cooperative attitude" that Gold Bond needed for the 90-day trial period. Consequently, on April 29, 1983, Ward concluded that Grohs was not qualified to remain in his supervisory position and discharged Grohs. ²

Grohs filed an age discrimination suit pursuant to 29 U.S.C. Sec. 626. A bench trial was held before Judge Moran who determined that Grohs successfully established a prima facie case of age discrimination and that Gold Bond's articulated nondiscriminatory reasons for the discharge were manufactured. The judge made a factual determination that Gold Bond had created a "laundry list" or "pretext list" to justify Grohs' dismissal. ³ Both parties appeal to this court.

II.

This court has held that the critical issue in age discrimination suits is not whether age was the sole factor, but rather, whether age was a "determining" factor, in that plaintiff would not have been discharged but for his age. La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1409 (7th Cir.1984); Kier v. Commercial Union Ins. Co., 808 F.2d 1254, 1257 (7th Cir.1987), cert. denied, --- U.S. ----, 107 S.Ct. 1955, 95 L.Ed.2d 528 (1987). It was Grohs' burden of proof to "show that he was discriminated against because of his age." Golomb v. Prudential Ins. Co. of North Am., 688 F.2d 547, 550 (7th Cir.1982) (emphasis in original).

The plaintiff may meet his burden of persuasion at trial in one of two ways. First, he may meet it directly, by presenting direct or circumstantial evidence that age was a determining factor in his discharge. Mathewson v. National Automatic Tool Co., 807 F.2d 87, 89-90 (7th Cir.1986); La Montagne, 750 F.2d at 1409. Second, he may meet it indirectly by utilizing a variation of the Supreme Court's burden-shifting analysis for resolving Title VII cases. This analysis was first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and elaborated and clarified in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981). This analysis as applied to ADEA cases requires that a plaintiff who files an ADEA claim, must show that he: (1) belongs to the protected class (age forty or older); (2) was qualified for his position; (3) was terminated; and (4) was replaced by a younger person. Metz v. Transit Mix, Inc., 828 F.2d 1202, 1204 (7th Cir.1987). When a plaintiff establishes these criteria, he has made a prima facie case of age discrimination and the burden shifts to the defendant to show that plaintiff's discharge was a result of "some legitimate, nondiscriminatory reason." If the defendant meets this challenge, the burden again shifts to the plaintiff to prove that the reasons for the discharge were merely a pretext for discrimination. McDonnell, 411 U.S. at 802-05, 93 S.Ct. at 1824-25; Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 17-18 (7th Cir.1987); Bechold v. IGW Sys., 817 F.2d 1282, 1284 (7th Cir.1987); La Montagne, 750 F.2d at 1409; Metz, 828 F.2d at 1204.

Once the case has been tried, however, the rules about the prima facie case, defendant's response and methods of proof no longer are relevant. The remaining issue is whether there was sufficient evidence to support a finding that age was a determinative factor in defendant's dismissal of the plaintiff. Kier, 808 F.2d at 1257; accord United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983); Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 558 (7th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987) (Title VII); Benzies v. Illinois Dep't of Mental Health, 810 F.2d 146, 148 (7th Cir.1987), cert. denied, --- U.S. ----, 107 S.Ct. 3231, 97 L.Ed.2d 737 (1987) (Title VII); Mathewson, 807 F.2d at 90 (ADEA); Morgan v. South Bend Community Schl. Corp., 797 F.2d 471, 480 (7th Cir.1986) (Title VII). To do this, the plaintiff must show that defendant's proffered reasons for discharge were pretextual. He must demonstrate that (1) the proffered reasons had no basis in fact, (2) the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge. Kier, 808 F.2d at 1259.

In examining the district court's findings, we operate under the clearly erroneous standard of review. Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Bechold, 817 F.2d at 1285.

III.

The district judge made a factual finding that Dennis Grohs was a "good, strong performer, and he was terminated." The judge indicated that he was "persuaded that age was a factor" in Grohs' termination, characterizing Gold Bond's reasons for Grohs' discharge as "a whole laundry list of irrelevancies." He stated that management's desire for " 'softer' supervision was a factor related to Grohs' age with the sense that ... he is too old." In his oral ruling, the judge said:

There was a feeling that plaintiff was expendable, and it didn't make any difference that he had been there for more than 20 years. They didn't choose to try to teach an old dog new tricks.... Management did want a little softer supervision. So that was a factor, but it was a factor related to the plaintiff's age in the sense of they were, in effect saying: and we're not going to take a chance with him. He has been set in his ways too long; he is too old, and he is expendable.

On the other hand, the district judge also found that Gold Bond had adopted a new 90-day strategy in an attempt to "do or die;" and that the company wanted decertification of its union and improved labor relations. The court found that Grohs' personality did not fit with the "new" image or strategy of the "new" company. Grohs'...