Lindsey v. Baxter Healthcare Corp.
| Decision Date | 10 June 1992 |
| Docket Number | Nos. 91-2342,91-2475,s. 91-2342 |
| Citation | 962 F.2d 586 |
| Parties | 59 Fair Empl.Prac.Cas. (BNA) 1244, 58 Empl. Prac. Dec. P 41,429, 121 Lab.Cas. P 56,893 Steven P. LINDSEY, Plaintiff-Appellant, Cross-Appellee, v. BAXTER HEALTHCARE CORPORATION, Defendant-Appellee, Cross-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Leigh R. Gignilliat (argued), Laurence J. Goldstein, Gignilliat & Hymen, Northbrook, Ill., for Steven P. Lindsey in No. 91-2342.
Leigh R. Gignilliat (argued), Steven A. Sigmond, Laurence J. Goldstein, Gignilliat & Hymen, Northbrook, Ill., for Steven P. Lindsey in No. 91-2475.
Mark L. Shapiro, Robert S. Letchinger (argued), Rudnick & Wolfe, Chicago, Ill., for Baxter Healthcare Corp.
Before BAUER, Chief Judge, POSNER, Circuit Judge, and NOLAND, Senior District Judge. *
This is a suit against Baxter Healthcare under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., with a pendent count (independently supported by diversity jurisdiction) for breach of an employment contract. On cross-motions for summary judgment, the district judge dismissed the age discrimination claim but awarded Lindsey, the plaintiff, $15,512.24 for breach of contract even though Lindsey had not asked for summary judgment on that count. 757 F.Supp. 888. Both parties appeal.
Lindsey was hired by a predecessor of Baxter in 1977, when he was 31 years old, as a sales representative. Several years later he took a cut in pay to become an entry-level manager in the surgical-products division; as "Region Manager" for Washington, D.C. he supervised the sales efforts of the sales representatives in that market. He was an outstanding manager but was criticized for calling a Baxter vice-president a "bitch" and for becoming a subject of gossip about his alleged personal indiscretions, of which more shortly. In 1986 Baxter reorganized part of its sales operation by combining several previously separate divisions, including the one in which Lindsey was the Washington Region Manager, into a new "Operating Room Division" and by creating "Area Managers" above the Region Managers. Lindsey, age 40, was passed over for appointment as an Area Manager in favor of a 32-year-old. Under the reorganization, the Area Manager was to appoint the Region Managers in his area in consultation with higher management. Lindsey was offered the position of Washington Region Manager--his old job except for the longer product line resulting from the combination of divisions--at the same pay, but declined the offer. This was in December 1986. Lindsey remained on Baxter's payroll although his duties were minimal to nonexistent. On May 4, 1987, he was informed that he was being terminated as of February 1, 1987, and would be taken off the payroll on May 8. If the sequence of dates perplexes, read on.
Because Lindsey was within the age range protected by the age discrimination law and was at least minimally qualified for the position of Area Manager yet was passed over in favor of a younger person, Baxter to stave off a trial had to set forth noninvidious reasons for its failure to appoint him. The burden would then shift to Lindsey to show either that the reasons were fishy or that, even if they seemed proper, in fact the company had been motivated by Lindsey's age in deciding not to appoint him. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371-72 (7th Cir.1992). Baxter was able to shift the burden, and Lindsey was not able to meet it. The company explained, reasonably enough, that while Lindsey was an excellent salesman, his human-relations skills were markedly inferior to those of the person appointed in his stead. In this age of sensitivity to the relations between the sexes in the workplace, one is hardly surprised that Lindsey should have been passed over for promotion after calling a female superior a "bitch" and after his superiors had received (according to an uncontested affidavit) "numerous reports of Lindsey's sexual indiscretions with colleagues, subordinates and even customers." His competitor, in contrast, "never put himself or others in embarrassing positions."
The company's judgment may have been wrong. Lindsey's lawyer asks darkly, "One wonders where industry would be today if promotions were to be governed by factors other than sales and performance evaluations." Maybe nowhere. But the age discrimination law does not shift responsibility for corporate personnel decisions from corporations to trial lawyers. If the company gives a reason for its decision that is unrelated to age, the plaintiff must present evidence either that the real reason was age or that the stated reason is unworthy of belief--a mere pretext, possibly for discrimination. Id.; Shager v. Upjohn Co., 913 F.2d 398, 400-01 (7th Cir.1990); Karazanos v. Navistar International Transportation Corp., 948 F.2d 332, 336 (7th Cir.1991). The fact that the decision may have reflected a philosophy of personnel management with which the plaintiff's lawyer disagrees cuts no ice at all. There is nothing else in this case. No weight can be attached to an overheard comment that Baxter does not like to promote "good old boys," since any competent user of the English (or rather the American) language knows that to be a good old boy one need not be old, or for that matter good. Stell v. State, 711 S.W.2d 746, 748 (Tex.App.1986). No weight can be attached to the fact that of the eight new Area Managers appointed after the reorganization none was 40 or older. The applicant pool from which Area Managers were chosen consisted of Region Managers (an entry level position), 80 percent of whom were under 40. (Of course if Lindsey had accepted the appointment, there would have been one.)
We turn to the cross-appeal. The letter that Lindsey received on May 4 said that he was being discharged as a result of the recent reorganization. Baxter regulations that had the force of...
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