Mechnig v. Sears, Roebuck & Co.

• Decision Date: 27 February 1989
• Docket Number: No. 87-2431,87-2431
• Citation: 864 F.2d 1359
• Parties: 48 Fair Empl.Prac.Cas. 1218, 48 Empl. Prac. Dec. P 38,555 Alfred MECHNIG, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1359

864 F.2d 1359

48 Fair Empl.Prac.Cas. 1218,

48 Empl. Prac. Dec. P 38,555

Alfred MECHNIG, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee.

No. 87-2431.

United States Court of Appeals Seventh Circuit.

Argued May 16, 1988.

Decided Dec. 29, 1988.

Rehearing Denied Feb. 27, 1989.

Charles A. Linn, Arnold & Kadjan, Chicago, Ill., for plaintiff-appellant.

Arthur L. Klein, Arnstein Gluck Lehr & Milligan, Chicago, Ill., for defendant-appellee.

Before COFFEY, EASTERBROOK and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Alfred Mechnig appeals from the district court's order entering summary judgment in favor of Sears, Roebuck & Co. under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621, et seq. We affirm.

I

Alfred Mechnig was employed by Sears, Roebuck & Co. at its Irving Park store in Chicago, Illinois from August 1950 until his termination on August 5, 1982. With the exception of a period from 1979 to April 1981, Mechnig worked as an "outside" plumbing and heating equipment salesman. During the time that Mechnig was employed as an "outside" salesman, these employees were scheduled to work one day a week in the store. The remainder of their work week was spent making sales calls outside the store. At the time of his termination Mechnig was 55 years old.

Sears terminated Mechnig on August 5, 1982, for allegedly violating its time card policies in connection with an incident occurring on Sunday June 27, 1982. On June 27, 1982, Mechnig did not arrive at Sears at the 11:00 a.m. starting time for his scheduled shift in the store. At about 11:15 a.m., Gary Marks, the "hard lines" merchandise manager, observed that Mechnig's department was short of help. Mechnig was called at home and arrived at work around 11:30 a.m. Mechnig was tardy because he apparently had made no effort to ascertain the hours he was to work that week. However, Mechnig also questions whether his scheduled hours were properly posted.

When Mechnig filled out his time card for the week he listed his arrival time on Sunday, June 27 as 11:00 a.m. Mechnig claimed that he had filled out his time card at the end of the week and did not think about the actual time he arrived on June 27. Mechnig recorded 40 hours on his card, in line with his perception, based upon alleged statements of Sears representatives, that, as an "outside" salesman, he should always record 40 hours of time irrespective of the number of hours he actually worked.

Upon reviewing Mechnig's time card, Marks noted the discrepancy between the time recorded on the card and Mechnig's actual arrival time. Marks brought this difference to the attention of store manager, Donald Hawley. Because Mechnig was on vacation from July 4, 1982 to July 20, 1982, Hawley was unable to speak with Mechnig about the time card question until late July 1982.

At that time a meeting was held between Mechnig, Hawley and Hank Steerman, the personnel representative whose responsibilities included the Irving Park store. At this meeting Mechnig did not deny that the starting time stated on his June 27, 1982 time card was in error. He stated that he had probably forgotten what time he reported in, and he felt that the exact number of hours recorded was not of great importance in that he was an "outside" salesman.

Hawley felt that Mechnig's time card inaccuracy warranted his termination, but desired to review Mechnig's personnel file before making a definite termination recommendation. After reviewing the file and discovering a number of written corrective reviews involving previous time card difficulties, Hawley recommended Mechnig's termination. Because Mechnig was an employee with a long period of prior service, Hawley and Steerman discussed the termination with Sears' group personnel manager, Tom Jones. Jones approved the recommendation to terminate Mechnig.

On August 5, 1982, Mechnig was terminated for violation of Sears' time card policy. An exit interview was conducted by the store's operating manager, Norman Kase. Kase read Mechnig a "deficiency" statement which listed the time card violation as the basis for Mechnig's termination. It is clear from the record that Sears justified its termination of Mechnig on the ground of his time card violation rather than his overall job performance. Mechnig had one of the stronger sales records among the store's "outside" salesmen.

It is not clear from the record whether Mechnig was replaced by a younger person. Sears' answer to an interrogatory states that Mechnig was replaced by Leonard Quick, a 56 year old employee, while Mechnig's deposition indicates that he was ultimately replaced by a number of different individuals, whose ages were not stated.

Some question was raised concerning the parameters of Sears' time card policy for "outside" salesmen. Mechnig asserts that outside salesmen were to record 40 hours on their time cards, irrespective of the actual number of hours worked. He claims that representatives of Sears over the years had told him to record only 40 hours to avoid the payment of overtime. ¹ Affidavits and deposition testimony offered from other employees provide some corroboration for Mechnig's position. George Kempf, Mechnig's immediate supervisor at the time of discharge, stated that he would have approved Mechnig's time card because Mechnig was not habitually late and outside salesmen traditionally put in more than 40 hours a week. Kempf further claimed that he would not have recommended Mechnig's discharge, although it is evident that he was not involved in the termination decision. Similarly, another division manager at the Irving Park store, Robert Wozney, contended that Sears did not want overtime pay, that his outside salesmen would generally put down 40 hours work on their time cards, that he routinely approved their time cards and that the "technicalities" of Sears time card procedures did not "bother us too much." Another division manager at the Irving Park store, Domenick Spoto, stated that it was an unwritten rule that overtime was not recorded. An outside salesman at the Irving Park store, Edward Stracek, asserted that the outside salesmen "were not required to fill in the exact hours worked so long as the hours added up to 40 hours in a week." Store manager Hawley's deposition testimony, taken as a whole, does not support a reasonable inference that the store manager was personally aware of these practices. ² There is no evidence that Hawley had excused any instance of time card discrepancies of which he had been aware. In fact, Sears had terminated individuals involved in the only other instance of time card falsification found in the record. ³

Sears disputes Mechnig's claims and asserts that outside salesmen were only to record the hours they actually worked. Language on the timecards states, above the space for the employee's signature: "I have recorded my actual starting and quitting time each day. Any falsification will subject me to dismissal." In addition, Mechnig signed employment agreements in 1971, 1975, 1980 and 1982 which contained the following language: "I agree to record all hours worked, both scheduled and unscheduled on my time card in the appropriate space. Failure to record my hours worked is a violation of the Fair Labor Standards Act as well as Company Policy."

Sears had a record of attempting to correct Mechnig's time card problems. As early as October 21, 1968, Mechnig was advised that he was required to punch in on the time clock for hours scheduled in the store and that further problems along these lines would make him "subject to dismissal from the company." A December 3, 1977, statement noted the following problem as one of several discussed with Mechnig: "Time cards will be properly filled out showing actual hours worked, scheduled and unscheduled." ⁴ On November 28, 1978, a notation was placed in Mechnig's file stating that Mechnig had come in at 9:30 a.m. and had entered 9:00 a.m. on his time card. The document stated that this conduct could not continue. This document was not signed by Mechnig. Mechnig was spoken with twice in 1979 concerning time card problems. On September 24, 1979, Mechnig was corrected for writing his time on the time card rather than using the time clock. One day later, on September 25, 1979, Mechnig was punched out at 6:10 p.m. even though he had been seen leaving the store several hours earlier. He had gone to a wedding. Mechnig remembers being spoken to at that time concerning leaving early, but not concerning his time card. On November 5, 1979, Mechnig was warned that continuation of various sorts of conduct engaged in earlier in 1979, including the time card incidents, could lead to his termination.

Mechnig presented statistical evidence in the form of an analysis of the sales employees at all Sears stores in the Chicago area who left their positions in 1981 and 1982. Mechnig's statistical expert, Robert Malone, prepared tables showing that, particularly in the full-time employee group of which Mechnig was part, persons over 40 made up a higher proportion of those terminated than of those who voluntarily separated. These tables did not include outside salesmen such as Mechnig. Further, most of the tables classified as terminated those employees who elected voluntary retirement, pursuant to Sears' program of providing older employees with ten weeks of pay upon leaving the company. One table excluded voluntarily retired employees from either the terminated or voluntarily separated category. That table, consisting exclusively of full time employees, also showed a higher proportion of persons over 40 among those terminated than among those who voluntarily separated. None of the tables included voluntarily retired employees in the voluntarily separated category. In his deposition Malone stated that if voluntary retirees were excluded from the tables in which they had been included, there would no longer be a higher percentage...