Partington v. Broyhill Furniture Industries, Inc., No. 92-3825

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore POSNER and COFFEY, Circuit Judges, and WILLIAMS; POSNER
Citation999 F.2d 269
Parties62 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.
Decision Date19 July 1993
Docket NumberNo. 92-3825

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.

Page 271

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

Page 272

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...

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84 practice notes
  • Carradine v. Barnhart, No. 02-4318.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 12, 2004
    ...wrong["].... Id. at 160-61. Indeed, as the author of the majority further noted in Partington v. Broyhill Furniture Industries, Inc., 999 F.2d 269, 272 (7th Cir.1993) (emphasis added), "[l]ive witnesses make a more forceful impression [than written For all of these reasons articulated by th......
  • Wichmann v. Bd. of Trustees of Southern Ill. Univ., No. 97-2902
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 7, 1999
    ..."[n]o inference of guilt can be drawn from [mere] awareness of one's legal obligations," Partington v. Broyhill Furniture Indus., Inc., 999 F.2d 269, 271 (7th Cir.1993), because we do not wish to discourage employers from informing themselves of those obligations. But "innocuous evidence of......
  • Rice v. Sunrise Express, Inc., No. 1:96-CV-0447.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • November 13, 2002
    ...Bank of Chicago v. Standard Bank & Trust, 172 F.3d 472, 480 (7th Cir.1999); see also, Partington v. Broyhill Furniture Industries, Inc., 999 F.2d 269 (7th Cir.1993) (Trial judge erred in applying postjudgment interest rate statute to determine prejudgment interest in age discrimination suit......
  • Baker v. John Morrell & Co., No. C01-4003-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • May 21, 2003
    ...does not provide an adequate basis to support the length of front pay requested. See Partington v. Broyhill Furniture Industries, Inc., 999 F.2d 269, 273 (7th Cir.1993) (observing that as a general proposition, "[t]he amount of proof required to establish damages will tend ... to be proport......
  • Request a trial to view additional results
84 cases
  • Carradine v. Barnhart, No. 02-4318.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 12, 2004
    ...wrong["].... Id. at 160-61. Indeed, as the author of the majority further noted in Partington v. Broyhill Furniture Industries, Inc., 999 F.2d 269, 272 (7th Cir.1993) (emphasis added), "[l]ive witnesses make a more forceful impression [than written For all of these reasons articulated by th......
  • Wichmann v. Bd. of Trustees of Southern Ill. Univ., No. 97-2902
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 7, 1999
    ..."[n]o inference of guilt can be drawn from [mere] awareness of one's legal obligations," Partington v. Broyhill Furniture Indus., Inc., 999 F.2d 269, 271 (7th Cir.1993), because we do not wish to discourage employers from informing themselves of those obligations. But "innocuous evidence of......
  • Rice v. Sunrise Express, Inc., No. 1:96-CV-0447.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • November 13, 2002
    ...Bank of Chicago v. Standard Bank & Trust, 172 F.3d 472, 480 (7th Cir.1999); see also, Partington v. Broyhill Furniture Industries, Inc., 999 F.2d 269 (7th Cir.1993) (Trial judge erred in applying postjudgment interest rate statute to determine prejudgment interest in age discrimination suit......
  • Baker v. John Morrell & Co., No. C01-4003-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • May 21, 2003
    ...does not provide an adequate basis to support the length of front pay requested. See Partington v. Broyhill Furniture Industries, Inc., 999 F.2d 269, 273 (7th Cir.1993) (observing that as a general proposition, "[t]he amount of proof required to establish damages will tend ... to be proport......
  • Request a trial to view additional results

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