Koski v. Standex Intern. Corp., 01-3505.

• Decision Date: 15 October 2002
• Docket Number: No. 01-3505.,01-3505.
• Citation: 307 F.3d 672
• Parties: Lee W. KOSKI, Plaintiff-Appellant, v. STANDEX INTERNATIONAL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

307 F.3d 672

Lee W. KOSKI, Plaintiff-Appellant, v. STANDEX INTERNATIONAL CORPORATION, Defendant-Appellee.

No. 01-3505.

United States Court of Appeals, Seventh Circuit.

Argued February 19, 2002.

Decided October 15, 2002.

E. Campion Kersten (argued), Kersten & McKinnon, Milwaukee, WI, for Plaintiff-Appellant.

Christopher Banaszak (argued), Reinhart, Boerner, Van Deuren, Norris & Rieselbach, Milwaukee, WI, for Defendant-Appellee.

Before COFFEY, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

After working for 28 years at Spincraft, a unit of Standex International Corporation in Wisconsin, Lee Koski lost his job at the age of 56. He responded by filing this action in the district court, alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621, et seq. The district court granted summary judgment in favor of Spincraft, stating that even if Koski could establish a prima facie case of age discrimination, he had not offered enough evidence to support a finding that Spincraft's stated reason for firing him (inadequate performance) was pretextual. We affirm.

I

Koski joined Spincraft in 1970 as a methods engineer. During his time at the company, he held a number of positions and received several promotions. In 1987, Koski was promoted from the position of estimator, a job that involved determining how a customer order should be produced and then calculating the cost for the order, to operations manager, which carried the greater responsibility of supervising manufacturing operations. While holding this position, Koski also temporarily assumed the responsibilities of the recently terminated Engineering Manager. Juggling both roles proved too much for Koski, and he was not able to fulfill the responsibilities of the engineering position adequately. In 1993, Del Lamont, who was then the President of Standex and acting General Manager of Spincraft, along with David Schmitz, the Vice President of Financial Administration for Standex, met with Koski about his poor performance. They concluded that Koski should be demoted from operations manager to the position of senior estimator because he was unable to perform successfully in a managerial role. Koski accepted the demotion along with the accompanying pay reduction.

Five years later, on September 29, 1998, Schmitz decided that Koski had to go. The reasons he offered for this decision were Koski's unsatisfactory performance and his continued inability to communicate effectively within the company and with its customers. Because the question whether these reasons were pretextual lies at the heart of Koski's appeal, we review the evidence that both he and the company presented on performance and pretext.

Prior to 1991, Koski received only positive performance reviews. Beginning in January 1991, a variety of supervisors began to record that Koski was moody, had a negative attitude and was not a team player. These comments were intermixed with positive statements, such as one in his October 1994 evaluation that reported that Koski worked hard, was well-informed and had a high degree of judgment.

In August 1994, Schmitz became Spincraft's general manager. Schmitz studied the performance of all the estimators and engineers and then met with Koski in April 1995 to discuss his job performance. During the meeting, Schmitz warned Koski that his job was in jeopardy because of his inability to communicate with the engineering department and other employees, which resulted in a breakdown in the handoff between estimating and engineering. Koski apparently took this advice to heart, because by the time Schmitz reviewed Koski in 1996, things had changed. This time Schmitz noted significant improvements in Koski's behavior. In the review, Schmitz even suggested giving Koski additional management responsibilities. Although Koski was not promoted again, he received merit salary increases in September 1996 and in 1997.

Despite Koski's improvement between 1996 and 1997, in April 1998, Schmitz again expressed concern about Koski's performance. In addition, Schmitz believed that Koski had made disparaging comments about him. Although Koski disputes that he ever made inappropriate remarks about Schmitz, he admits that he and other employees had a conversation about Schmitz on a business trip in Indianapolis. Although Koski's exact words during this conversation are disputed, two employees reported to Schmitz that Koski stated that he was waiting for Schmitz to be fired before he would cooperate with Spincraft management. Schmitz met with Koski to discuss both the performance issues and the reported remarks. During the meeting, Schmitz told Koski that he was difficult to work with because he was constantly bitter.

This record standing alone would be enough to show that Spincraft regarded Koski as a problem employee by the time it decided to terminate him. Koski, however, argues that there is more to the story and claims that the following evidence reveals that the company's views were not genuinely held. First, he suggests that Spincraft gave shifting and inconsistent reasons for terminating him. At one point Spincraft alleged that Koski was fired because of a longstanding failure to perform, lack of teamwork, negative attitude (including open complaints and disparaging remarks about other employees and management), lack of communication, and poor transition from estimating to engineering. Later, in its response to interrogatories in the proceedings before the district court, Spincraft omitted the assertions that Koski was a poor team worker and made a bad transition from estimator to engineer, but it added charges of moodiness and non-acceptance of criticism along with an inability (as opposed to failure) to perform. In the summary judgment affidavits, Spincraft said that Koski was fired primarily because of his allegedly disloyal statements made to fellow employees on the Indianapolis business trip.

Second, Koski argues that Spincraft's documentary record of his alleged deficiencies is itself suspicious. Many of the documents Spincraft claimed were supportive of its characterization of Koski's performance were not found in Koski's personnel file. Although performance reviews are ordinarily placed in an employee's personnel file, Koski's 1993, 1996, and October 1998 performance reviews were missing when he initially requested the file. Koski also points to his October 1998 performance review as an example of Spincraft's spurious documents. The 1998 review is the document on which Spincraft principally relied to justify Koski's September 29, 1998 termination, but that review was dated October 6, 1998, seven days after the action in question. Koski also points out that Schmitz destroyed the notes that would have supported the analysis in his performance reviews, including the 1998 performance review — an action that casts doubt on the integrity of Schmitz's later evaluation, in his view. Koski maintains that a jury could infer that the notes never existed or that they would have supported Koski's position had they not been destroyed.

Koski offers a number of other pretext arguments, mostly disputing the findings in Schmitz's evaluation. He asserts that other employees would characterize his performance favorably. Koski also provides testimony that Schmitz had "invented charges" against other older employees to support their termination.

Finally, Koski offers statistical and anecdotal evidence in an attempt to document a pattern at Spincraft of unfair treatment and termination of older employees. He notes that of the 11 employees who were terminated between January 1995 and 1998, six were over 40 and four more were 39. The five under 40 had all worked at Spincraft for less than a year. Only two of the employees terminated were replaced by someone over 40. He also alleges that several employees at Spincraft believe that they were treated less favorably than the younger employees by Spincraft management and that they missed out on opportunities because of their age. Finally, Koski asserts that managers other than Schmitz sometimes made discriminatory remarks, such as "a lot of experience means a lot of bad habits" and "the only thing older employees bring to the table are their bad habits."

After his termination, Koski's duties were assumed by Mike Polacek and Jeff Dudzik, men in their thirties. Polacek and Dudzik, who were already managers, were each given management titles to perform Koski's duties, even though Koski had not had a similar title while performing the same work.

II

Before we address the district court's judgment, we pause briefly to address Koski's constitutional claims. Koski argues that the district court's grant of summary judgment violated his due process rights under the Fifth Amendment, citing Goldberg v. Kelly, 397 U.S. 254, 268, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). We are at a loss to see how Goldberg is implicated at all in a case involving a private employer's actions. If Koski is complaining about the court's actions (because the court at least is a governmental actor), he is making a frivolous argument. The Supreme Court has made it abundantly clear that summary judgment has a proper role to play in civil cases, and there is nothing we can or should add to the point.

Koski also claims that the district court violated his Seventh Amendment right to a jury trial, but Koski was never denied any such thing. The district court merely determined that there were no material issues of fact that could be presented to a jury. To the extent that Koski is arguing that Rule 56 of the Federal Rules of Civil Procedure violates the Seventh Amendment, this argument too flies in the face of firmly established law. See, e.g., Fidelity & Deposit Co. of Maryland v. United States, 187 U.S. 315, 320, 23 S.Ct. 120, 47 L.Ed. 194 (1902). The Seventh Amendment does not entitle parties to litigate before a jury when...