Palucki v. Sears, Roebuck & Co.

Citation879 F.2d 1568
Decision Date21 July 1989
Docket NumberNo. 88-2086,88-2086
Parties50 Fair Empl.Prac.Cas. 553, 51 Empl. Prac. Dec. P 39,288, 14 Fed.R.Serv.3d 228 Robert H. PALUCKI, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Arthur L. Klein, Arnstein Gluck Lehr & Milligan, Michael A. Stiegel, Paul E. Starkman, Chicago, Ill., for defendant-appellee.

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

Before POSNER and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

POSNER, Circuit Judge.

The district court granted summary judgment for the defendant, Sears Roebuck, in this suit charging age discrimination in employment (29 U.S.C. Secs. 621 et seq.), and dismissed the suit. 687 F.Supp. 388 (N.D.Ill.1988). The plaintiff, Robert Palucki, had risen steadily through the ranks at Sears, where he had started working at the age of 16. By 1981, at the age of 40, he was the manager of the home-appliances division of a Sears store in Park Forest, a suburb of Chicago. That year, as part of a general reorganization of Sears's business, the management of the store created a new division which combined the jewelry, cosmetic, and shoe departments. Palucki was named manager of the new division. He was not happy with the move, because his managerial experience had been limited to "big ticket" items, such as furniture and appliances; managing "small ticket" items involves special problems, such as security (in the case of jewelry) and the supervision of part-time as well as full-time help. Palucki was not successful in his new job, and after a year he was fired and replaced by a man in his early thirties, precipitating this lawsuit.

Although the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 1824 n. 13, 36 L.Ed.2d 668 (1973), warned that the order-of-proof scheme it was adopting to guide the litigation of discrimination claims should not be fetishized, see also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 and n. 6, 101 S.Ct. 1089, 1094 and n. 6, 67 L.Ed.2d 207 (1981), that is what Palucki wants us to do with it. He argues as follows. He was over 40 when he was fired, and therefore was within the class protected by the Age Discrimination in Employment Act, and he was replaced by a person under 40. This he contends made out a prima facie case and placed on Sears the burden of producing a reason other than age for firing Palucki. Although Sears did this and presented evidence showing numerous deficiencies in Palucki's management of the new division, Palucki responded with his own evidence--his deposition and that of another former employee, Fasano, as well as depositions of several subordinates of Palucki--both to rebut the evidence of deficiencies and to establish that Sears had maintained a "hit list" of older employees on which Palucki's name had appeared prior to his transfer to the new division. Therefore, Palucki claims, he created a genuine issue of material fact, precluding the grant of summary judgment and entitling him to a jury trial.

This is a bit too neat. What is true is that evidence sufficient to establish what is loosely termed in these cases a "prima facie case" does place on the employer the burden of coming forward with a noninvidious explanation for why the plaintiff was fired, or not hired, or otherwise treated unfavorably in employment, as the case may be. If the employer fails to produce such an explanation the plaintiff wins, while if the employer does produce an explanation the plaintiff must show it to be unworthy of belief--or lose his case. Thus the McDonnell Douglas "prima facie case" is not a "real" prima facie case, in the conventional sense of a case strong enough to withstand a defendant's motion for summary judgment, because it does not entitle the plaintiff to a trial. More properly termed a presumption, it is a device for making the defendant speak, and once he does speak it falls out. See, e.g., Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10; Washington v. Electrical Joint Apprenticeship & Training Comm., 845 F.2d 710, 714 (7th Cir.1988).

But it does not follow from all this, as Palucki appears to believe, that if the plaintiff does rebut the employer's rebuttal--not in the sense of demolishing it but in the sense of contesting it with his own, contrary evidence--he automatically defeats summary judgment and secures his right to a trial. The district court must still make a judgment as to whether the evidence, interpreted favorably to the plaintiff, could persuade a reasonable jury that the employer had discriminated against the plaintiff. Cf. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If not, the court must grant the employer's motion for summary judgment.

So let us examine the state of the record when the motion was made. Palucki acknowledged that he had had problems adjusting to the new division, and indeed that the problems had never been solved. But he tried to turn this debit into a credit by arguing that Sears had transferred him to the new division hoping he would fail so that it would have a pretext for firing him. This is an exceedingly improbable plot. Remember that Palucki was not just transferred to the staff of the new division but was made the division head, and the division combined three departments. This was an important job and it is hard to believe, without evidence, that Sears--concretely, the manager of the store, whose career depended on the success of the divisions under his supervision--would fill the job with someone expected to make a botch of it. Nor was this someone an older person whom a rapacious employer might want to discharge because he was approaching the age at which he could retire with a big pension. Palucki was only 40 when he was appointed to his new job and as far as the record shows this was decades away from retirement for him. Although there are jobs for which a 40-year-old would be considered superannuated, we are not aware that division manager in a department store is one of them; and it is relevant to note in this connection that the person who replaced Palucki as head of the home-appliances division was in his fifties. On top of all this there is extensive and largely unrebutted evidence that Palucki really did screw up in the new job. He received three written deficiency reports during his one-year tenure, and while he argues that he should have been given more time to correct them, he does not contest the genuineness of the deficiencies, which were indeed numerous and apparently serious; they included repeated failures to maintain adequate security for jewelry and to schedule part-time workers when they were needed. Apparently Palucki was disgruntled at being transferred out of his beloved big-ticket milieu and unable or unwilling to adjust.

Against all this, Palucki's deposition evidence, however sincere, that Sears took too hard a view of his deficiencies is entirely unavailing, and gains nothing from depositions by the employees under him that they thought Palucki was doing an okay job. See, e.g., Williams v. Williams Electronics, Inc., 856 F.2d 920, 924 (7th Cir.1988). The employee doesn't get to write his own job description. An employer can set whatever...

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