Partington v. Broyhill Furniture Industries, Inc.

• Decision Date: 19 July 1993
• Docket Number: No. 92-3825,92-3825
• Citation: 999 F.2d 269
• Parties: 62 Fair Empl.Prac.Cas. (BNA) 534, 62 Empl. Prac. Dec. P 42,470, 62 USLW 2099 James R. PARTINGTON, Plaintiff-Appellee, v. BROYHILL FURNITURE INDUSTRIES, INCORPORATED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 269

999 F.2d 269

62 Fair Empl.Prac.Cas. (BNA) 534,

62 Empl. Prac. Dec. P 42,470, 62 USLW 2099

James R. PARTINGTON, Plaintiff-Appellee, v. BROYHILL FURNITURE INDUSTRIES, INCORPORATED, Defendant-Appellant.

No. 92-3825.

United States Court of Appeals, Seventh Circuit.

Argued May 3, 1993.

Decided July 19, 1993.

Raymond J. Hafsten, Jr. (argued), Indianapolis, IN, for plaintiff-appellee.

James R. Fisher, Todd W. Ponder (argued), Ice, Miller, Donadio & Ryan, Indianapolis, IN, for defendant-appellant.

Before POSNER and COFFEY, Circuit Judges, and WILLIAMS, Senior District Judge. ^*

POSNER, Circuit Judge.

James Partington, a salesman employed by the Broyhill furniture company, was discharged the day before his sixtieth birthday, and brought suit under the age discrimination in employment law. A jury found in his favor and judgment was entered for more than $200,000 in back pay, front pay, prejudgment interest, and attorneys' fees.

The company's main contention on appeal is that it was entitled to judgment notwithstanding the verdict because there was no evidence that it dismissed Partington because of his age. There was little evidence; that is true. In 1980 Broyhill had begun reducing the size of its work force and in 1987 it decided that three salesmen were one too many in the area (comprising most of Indiana) to which Partington was assigned. The other two salesmen assigned to that area were Shepard and Neal. Shepard, it is conceded, was the best of the three. The question was whether Neal, who was in his thirties, or Partington would be let go. The axe fell on Partington. He has since found other employment as a furniture salesman, but at a reduced income.

Neal had been hired in 1984 and had exceeded his annual sales quota (set by the company at the beginning of each year) in each of the four years that ended with Partington's dismissal. Partington had failed to meet his quota in 1984 and 1985 but had exceeded it in each of the following two years and in 1986 had done so by a greater percentage than Neal. If this were all the evidence in the case, it would indeed be a no-evidence case, and Partington's evidence that he was praised for his performance in both 1986 and 1987 would be irrelevant. Broyhill does not claim that Partington was dismissed because of poor performance, but rather as the result of a Darwinian struggle among three salesmen for two positions. The weakest lost. The market, like the jungle to which it is sometimes compared, is pitiless. Nothing in the age discrimination law provides tenure to competent older workers. They can be let go for any reason or no reason, provided only that the reason is not their age. They can be let go because they are not quite as good as someone else who can do their job, even if that someone else is a young man.

But more evidence was presented to the jury than we have discussed so far. The least of the additional evidence, though heavily stressed by Partington, is that pretrial discovery turned up a list of salesmen with their ages written next to their names and that when Partington was dismissed he was offered severance pay if he would sign a release of his right to sue under the age discrimination law. Standing by itself all this evidence showed was that Broyhill was aware that a company that dismisses an older worker has potential liability under the age discrimination law. No inference of guilt can be drawn from awareness of one's legal obligations; to do so would be to promote the ostrich over the farther-seeing species. But the innocuous evidence of age awareness becomes significant in conjunction with evidence that Broyhill ordered a "purge" of the files of its terminated salesmen (most of whom were over the age of 40 and thus potential age discrimination plaintiffs). The word was first used by Partington's counsel but it was adopted by the employee who had administered the purge. Broyhill presented evidence that the purpose was merely to eliminate duplicates, yet the purge came to light only because pretrial discovery turned up from other sources documents that should have been in the terminated employees' files but were not. We know that Broyhill was sensitive to the possibility of being sued by these employees under the age discrimination law, and for this sensitivity, as we have said, it cannot be criticized. But if, being sensitive to the possibility of a suit, a company then destroys the very files that would be expected to contain the evidence most relevant to such a suit, the inference arises that it has purged incriminating evidence.

There is more. When Partington asked the reason for his dismissal he was told that performance had nothing to do with it. Broyhill explains that all this meant was that he wasn't being terminated because of poor performance, only because of poorer performance than his rivals in the sales force. This may be; but the executive who told Partington that he was not being dismissed because of performance never testified to what he meant, and the jury was entitled to infer from his silence on the question that it was a meaning unfavorable to Broyhill. Moreover, despite the comparison in sales performance which seemed to favor Neal over Partington, the executives of Broyhill who were responsible for dismissing Partington testified that they couldn't recall the precise reason why Neal was preferred, and some of them referred vaguely to future as well as past performance. Moreover, while Neal had a better record than Partington, it was also a shorter record (Partington had been with the company since 1973), and might prove to be a flash in the pan. So the sales figures were not necessarily as significant as they may have seemed, and anyway as we have pointed out there is no evidence that they were the actual basis for the decision in favor of Neal. Broyhill notes that despite its alleged bias in favor of the young the average age of its sales force was higher at the end of the 1980s than at the beginning. But this means very little, since with little new hiring the average age of the work force was bound to grow significantly over a ten-year period.

Broyhill presented only one live witness. Most of its evidence was presented in the form of depositions. Live witnesses make a more forceful impression, cf. Traylor v. Husqvarna Motor, 988 F.2d 729, 734 (7th Cir.1993), and at argument Broyhill's lawyer conceded that it may have been a tactical mistake not to present more of them, as it could easily have done since they are Broyhill's own executives. We are not at all sure that the concession is warranted. The decision not to put the executives on the stand may have been a tactical one, motivated by concern that they would be demolished on cross-examination or that their lack of recall would make an even worse impression on the jury when they were testifying in person. The failure to call any of these witnesses is particularly significant in light of the deposition testimony of one of them, who when asked by Partington's counsel, "You did not advocate [Partington's retention]?" answered, "The longevity may have had some bearing in there." By longevity he evidently meant length of service rather than chronological age, but if Partington's length of service counted against him this would undermine the...