Huhn v. Koehring Co.

• Decision Date: 29 September 1983
• Docket Number: No. 82-2865,82-2865
• Citation: 718 F.2d 239
• Parties: 32 Fair Empl.Prac.Cas. 1684, 32 Empl. Prac. Dec. P 33,833 Gerald R. HUHN, Plaintiff-Appellant, v. KOEHRING COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 239

718 F.2d 239

32 Fair Empl.Prac.Cas. 1684,

32 Empl. Prac. Dec. P 33,833

Gerald R. HUHN, Plaintiff-Appellant, v. KOEHRING COMPANY, Defendant-Appellee.

No. 82-2865.

United States Court of Appeals, Seventh Circuit.

Argued April 8, 1983.

Decided Sept. 29, 1983.

Alan S. Brostoff, Milwaukee, Wis., for plaintiff-appellant.

John R. Sapp, Michael, Best & Friedrich, Milwaukee, Wis., for defendant-appellee.

Before PELL and COFFEY, Circuit Judges, and WEIGEL, District Judge. ^*

COFFEY, Circuit Judge.

Gerald R. Huhn appeals from the order of the United States District Court, Eastern District of Wisconsin, granting summary judgment in favor of the Koehring Company (Farm Equipment Division), his employer, under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (the "ADEA"). Huhn contends that the order was improper because the company's explanation for discharging him was a pretext for age discrimination rather than a legitimate business reason. We affirm.

I.

At all times relevant to this litigation, the Farm Equipment Division of Koehring manufactured various farm implements and machinery and was headquartered in Appleton, Wisconsin. The products of the Farm Equipment Division were sold through a network of retail dealers serviced by area salesmen assigned individual territories. An area salesman's duties consisted of promoting wholesale shipment of equipment to retail dealers, collecting monies due to Koehring for the financing of the wholesale sales, and assisting the dealers in selling the equipment at the retail level.

The plaintiff, Gerald R. Huhn, an area salesman for the Farm Equipment Division, was assigned the northeastern section of Wisconsin and the upper peninsula of Michigan. Since the Farm Equipment Division's headquarters were located in this area, this territory was of particular importance to the Koehring Company and had previously enjoyed one of the highest sales volumes in the country. In 1976, for some unknown reason, shipments to Huhn's territory dramatically dropped. The comparable figures for the plaintiff Huhn's territory for the years 1974, 1975, and 1976 are as follows:

                1974  $1,267,484.15
                1975  $1,158,833.02
                1976  $  673,689.27
                

As of the end of July, 1977, the plaintiff Huhn's sales declined another 30.2% from his 1976 depressed sales volume. Additionally, each area salesman was given a quota for finance collections to be made on the wholesale sales in his territory (based on his past performance) and in 1976 Huhn achieved only 66.3% of his quota.

A decision was made within Koehring to remove Huhn from his sales duties, and on August 15, 1977, Damon Vitale, the Farm Equipment Division President and General Manager, and Thomas Symons, the Division's Director of Employee Relations, met with Huhn, now fifty years of age, to inform him that he was being placed on indefinite leave of absence due to the dramatic sales decline in his territory. ¹ Rather than terminate him, the Koehring Company placed Huhn on leave of absence in order that he might be able to continue his medical and other insurance as he had previously undergone open-heart surgery and was still under medication. John D. Miller, age forty-five, was assigned Huhn's sales territory on September 15, 1977. While on leave of absence, Huhn accepted employment with the Kewanee Machinery Company on December 5, 1977. Koehring continued to provide Huhn with health and life insurance until such time as Huhn formally declined an offer to return to the Farm Equipment Division in another position in April of 1978.

Subsequent to Huhn's removal from his sales position, Huhn asked Koehring to provide him with written confirmation of the leave of absence conference held August 15, 1977 between Huhn, Symons and Vitale. On August 23, 1977, Mr. Symons sent Huhn a letter which recited in pertinent part:

"Actual shipments in your territory are significantly below its business potential and what is required, in view of the shipments that have been traditionally generated in that territory over the years. Additionally, dealer calls have decreased to an average of only one per day. Therefore, it is necessary to replace you in the territory.

"It is also our belief that you would not be interested in an internal office position should one become available in the future.

"After selection of a replacement and your familiarizing him with your territory, you will be placed on an indefinite personal leave of absence that will be reviewed at the end of six months. During the period of your approved leave of absence your life and health insurances will remain in force.

"If, during the term of the leave of absence, you should become qualified for Social Security benefits, you would automatically qualify for a Koehring pension, and continuation of your life and health insurance program.

"Please contact me if you have any questions regarding the above matter." ²

On February 10, 1978, pursuant to 29 U.S.C. Sec. 626(d), Huhn contacted the United States Department of Labor advising the department that he intended to commence a lawsuit against Koehring contending that his termination of employment was a result of age discrimination. On May 2, 1978, Edmund Shedd, the Area Director of the Department of Labor, informed Huhn that after investigating his charges and meeting with Koehring employees in an attempt to resolve the dispute, Shedd decided to take no further action and informed Huhn that he was free to institute suit against his former employer. Huhn filed suit in the United States District Court, Eastern District of Wisconsin on August 13, 1980, contending that the Koehring Company terminated his employment because of his age even though he had performed his duties "loyally and satisfactorily." The Koehring Company's answer denied that Huhn had performed his duties satisfactorily or that he was discharged because of his age and affirmatively stated that he had been "fired for good cause." After numerous depositions and the exchange of interrogatories, Koehring filed a summary judgment motion arguing that the plaintiff had failed to allege nor could he prove age discrimination under the ADEA standards. In essence, the Koehring Company contended that:

"Mr. Huhn cannot establish a prima facie case because he cannot establish that he was qualified for the job and he cannot demonstrate that he was replaced by a person outside the protected group. He also cannot carry his ultimate burden of showing that age was a determining 'but for' factor in the company's decision to remove him from his territory."

The plaintiff Huhn countered, arguing that material issues of fact existed concerning his qualifications, sales performance, and the ultimate reason for his termination and thus summary judgment was inappropriate.

After reviewing the briefs and affidavits filed in support of and in opposition to the summary judgment motion, the district judge granted the defendant Koehring's summary judgment motion. In its decision the district court recited the basic elements of an age discrimination action and noted that a plaintiff is initially required to establish a prima facie case of employment discrimination based upon the factors set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court reasoned that under McDonnell Douglas, an age discrimination plaintiff in order to raise an inference of improper discrimination must show: (1) that he belongs to the protected class; (2) that he was qualified for the position; (3) that he suffered an adverse employment decision; and (4) that the employer sought to replace him. After a plaintiff has set forth a prima facie case, the district court held that the burden shifts to the employer to articulate a justification for his decision. Once the employer articulates a justification for the employee's termination, the employee must then prove that the justification was merely a pretext--that but for his age he would not have been terminated. The employer need only articulate justification for his decision to terminate the employee, thus the ultimate burden of proof remains at all times with the plaintiff. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

In response to the Koehring Company's summary judgment motion, the court ruled that:

"Summary judgment in discrimination cases, which often necessarily involve issues of motive and intent, must be approached with caution. However, every now and then a case that is appropriate for summary disposition crops up. In Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1218 (7th Cir.1980), the court stated:

'Summary judgment is improper in a discrimination case--or any other--if it involves--as it often must--any weighing of conflicting indications of motive and intent. Here plaintiff had no indications of motive and intent, supportive of his position, to put on the scales for weighing. It was a wholly empty case. In such circumstances, summary judgment is proper.' "

The district court went on to find that Huhn's case was "wholly empty."

The district court further held that:

"Under this analysis, this case could be approached in two ways. Defendant here contends that Huhn was removed from his sales territory because he was not doing his job satisfactorily. On the one hand, under Kephart that would seem to indicate that Huhn was not qualified for the job and therefore had not made out a prima facie case of discrimination. On the other hand, the fact that Huhn was not doing his job satisfactorily can be viewed as an articulation of a non-discriminatory reason for the removal. Because Huhn had been a salesman for this company for many years, in this case I will treat the company's dissatisfaction with his performance as an articulation of a non-discriminatory reason for the termination. I therefore find that Huhn has established a prima facie case. He was in...